[Title 40 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2019 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 40
Protection of Environment
________________________
Parts 300 to 399
Revised as of July 1, 2019
Containing a codification of documents of general
applicability and future effect
As of July 1, 2019
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 40:
Chapter I--Environmental Protection Agency
(Continued) 3
Finding Aids:
Table of CFR Titles and Chapters........................ 541
Alphabetical List of Agencies Appearing in the CFR...... 561
List of CFR Sections Affected........................... 571
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 40 CFR 300.1 refers
to title 40, part 300,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
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parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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``[RESERVED]'' TERMINOLOGY
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(b) The matter incorporated is in fact available to the extent
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this volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
July 1, 2019
[[Page ix]]
THIS TITLE
Title 40--Protection of Environment is composed of thirty-seven
volumes. The parts in these volumes are arranged in the following order:
Parts 1-49, parts 50-51, part 52 (52.01-52.1018), part 52 (52.1019-
52.2019), part 52 (52.2020-end of part 52), parts 53-59, part 60 (60.1-
60.499), part 60 (60.500-end of part 60, sections), part 60
(Appendices), parts 61-62, part 63 (63.1-63.599), part 63 (63.600-
63.1199), part 63 (63.1200-63.1439), part 63 (63.1440-63.6175), part 63
(63.6580-63.8830), part 63 (63.8980-end of part 63), parts 64-71, parts
72-79, part 80, part 81, parts 82-86, parts 87-95, parts 96-99, parts
100-135, parts 136-149, parts 150-189, parts 190-259, parts 260-265,
parts 266-299, parts 300-399, parts 400-424, parts 425-699, parts 700-
722, parts 723-789, parts 790-999, parts 1000-1059, and part 1060 to
end. The contents of these volumes represent all current regulations
codified under this title of the CFR as of July 1, 2019.
Chapter I--Environmental Protection Agency appears in all thirty-
seven volumes. OMB control numbers for title 40 appear in Sec. 9.1 of
this chapter.
Chapters IV-VIII--Regulations issued by the Environmental Protection
Agency and Department of Justice, Council on Environmental Quality,
Chemical Safety and Hazard Investigation Board, Environmental Protection
Agency and Department of Defense; Uniform National Discharge Standards
for Vessels of the Armed Forces, and the Gulf Coast Ecosystem
Restoration Council appear in volume thirty seven.
For this volume, Michele Bugenhagen was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 40--PROTECTION OF ENVIRONMENT
(This book contains parts 300 to 399)
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Part
chapter i--Environmental Protection Agency (Continued)...... 300
[[Page 3]]
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
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Editorial Note: Nomenclature changes to chapter I appear at 65 FR
47324, 47325, Aug. 2, 2000.
SUBCHAPTER J--SUPERFUND, EMERGENCY PLANNING, AND COMMUNITY RIGHT-TO-KNOW
PROGRAMS
Part Page
300 National Oil and Hazardous Substances
Pollution Contingency Plan.............. 5
302 Designation, reportable quantities, and
notification............................ 310
303 Citizen awards for information on criminal
violations under Superfund.............. 366
304 Arbitration procedures for small Superfund
cost recovery claims.................... 369
305 Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA)
administrative hearing procedures for
claims against the Superfund............ 382
307 Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA)
claims procedures....................... 394
310 Reimbursement to local governments for
emergency response to hazardous
substance releases...................... 414
311 Worker protection........................... 427
312 Innocent landowners, standards for
conducting all appropriate inquiries.... 428
350 Trade secrecy claims for emergency planning
and community right-to-know information:
and trade secret disclosures to health
professionals........................... 437
355 Emergency planning and notification......... 461
370 Hazardous chemical reporting: Community
right-to-know........................... 480
372 Toxic chemical release reporting: Community
right-to-know........................... 492
373 Reporting hazardous substance activity when
selling or transferring Federal real
property................................ 533
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374 Prior notice of citizen suits............... 534
375-399
[Reserved]
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SUBCHAPTER J_SUPERFUND, EMERGENCY PLANNING, AND COMMUNITY RIGHT-TO-KNOW
PROGRAMS
PART 300_NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION CONTINGENCY
PLAN--Table of Contents
Subpart A_Introduction
Sec.
300.1 Purpose and objectives.
300.2 Authority and applicability.
300.3 Scope.
300.4 Abbreviations.
300.5 Definitions.
300.6 Use of number and gender.
300.7 Computation of time.
Subpart B_Responsibility and Organization for Response
300.100 Duties of President delegated to federal agencies.
300.105 General organization concepts.
300.110 National Response Team.
300.115 Regional Response Teams.
300.120 On-scene coordinators and remedial project managers: general
responsibilities.
300.125 Notification and communications.
300.130 Determinations to initiate response and special conditions.
300.135 Response operations.
300.140 Multi-regional responses.
300.145 Special teams and other assistance available to OSCs/RPMs.
300.150 Worker health and safety.
300.155 Public information and community relations.
300.160 Documentation and cost recovery.
300.165 OSC reports.
300.170 Federal agency participation.
300.175 Federal agencies: additional responsibilities and assistance.
300.180 State and local participation in response.
300.185 Nongovernmental participation.
Subpart C_Planning and Preparedness
300.200 General.
300.205 Planning and coordination structure.
300.210 Federal contingency plans.
300.211 OPA facility and vessel response plans.
300.212 Area response drills.
300.215 Title III local emergency response plans.
300.220 Related Title III issues.
Subpart D_Operational Response Phases for Oil Removal
300.300 Phase I--Discovery or notification.
300.305 Phase II--Preliminary assessment and initiation of action.
300.310 Phase III--Containment, countermeasures, cleanup, and disposal.
300.315 Phase IV--Documentation and cost recovery.
300.317 National response priorities.
300.320 General pattern of response.
300.322 Response to substantial threats to public health or welfare of
the United States.
300.323 Spills of national significance.
300.324 Response to worst case discharges.
300.335 Funding.
Subpart E_Hazardous Substance Response
300.400 General.
300.405 Discovery or notification.
300.410 Removal site evaluation.
300.415 Removal action.
300.420 Remedial site evaluation.
300.425 Establishing remedial priorities.
300.430 Remedial investigation/feasibility study and selection of
remedy.
300.435 Remedial design/remedial action, operation and maintenance.
300.440 Procedures for planning and implementing off-site response
actions.
Subpart F_State Involvement in Hazardous Substance Response
300.500 General.
300.505 EPA/State Superfund Memorandum of Agreement (SMOA).
300.510 State assurances.
300.515 Requirements for state involvement in remedial and enforcement
response.
300.520 State involvement in EPA-lead enforcement negotiations.
300.525 State involvement in removal actions.
Subpart G_Trustees for Natural Resources
300.600 Designation of federal trustees.
300.605 State trustees.
300.610 Indian tribes.
300.612 Foreign trustees.
300.615 Responsibilities of trustees.
Subpart H_Participation by Other Persons
300.700 Activities by other persons.
[[Page 6]]
Subpart I_Administrative Record for Selection of Response Action
300.800 Establishment of an administrative record.
300.805 Location of the administrative record file.
300.810 Contents of the administrative record file.
300.815 Administrative record file for a remedial action.
300.820 Administrative record file for a removal action.
300.825 Record requirements after the decision document is signed.
Subpart J_Use of Dispersants and Other Chemicals
300.900 General.
300.905 NCP Product Schedule.
300.910 Authorization of use.
300.915 Data requirements.
300.920 Addition of products to Schedule.
Subpart K--Federal Facilities [Reserved]
Subpart L_National Oil and Hazardous Substances Pollution Contingency
Plan; Involuntary Acquisition of Property by the Government
300.1105 Involuntary acquisition of property by the government.
Appendix A to Part 300--The Hazard Ranking System
Appendix B to Part 300--National Priorities List
Appendix C to Part 300--Swirling Flask Dispersant Effectiveness Test,
Revised Standard Dispersant Toxicity Test, and Bioremediation
Agent Effectiveness Test
Appendix D to Part 300--Appropriate Actions and Methods of Remedying
Releases
Appendix E to Part 300--Oil Spill Response
Authority: 33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR
56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991
Comp., p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
Subpart A_Introduction
Source: 59 FR 47416, Sept. 15, 1994, unless otherwise noted.
Sec. 300.1 Purpose and objectives.
The purpose of the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP) is to provide the organizational structure and
procedures for preparing for and responding to discharges of oil and
releases of hazardous substances, pollutants, and contaminants.
Sec. 300.2 Authority and applicability.
The NCP is required by section 105 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42
U.S.C. 9605, as amended by the Superfund Amendments and Reauthorization
Act of 1986 (SARA), Pub. L. 99-499, (hereinafter CERCLA), and by section
311(d) of the Clean Water Act (CWA), 33 U.S.C. 1321(d), as amended by
the Oil Pollution Act of 1990 (OPA), Pub. L. 101-380. In Executive Order
(E.O.) 12777 (56 FR 54757, October 22, 1991), the President delegated to
the Environmental Protection Agency (EPA) the responsibility for the
amendment of the NCP. Amendments to the NCP are coordinated with members
of the National Response Team (NRT) prior to publication for notice and
comment. This includes coordination with the Federal Emergency
Management Agency (FEMA) and the Nuclear Regulatory Commission in order
to avoid inconsistent or duplicative requirements in the emergency
planning responsibilities of those agencies. The NCP is applicable to
response actions taken pursuant to the authorities under CERCLA and
section 311 of the CWA, as amended.
Sec. 300.3 Scope.
(a) The NCP applies to and is in effect for:
(1) Discharges of oil into or on the navigable waters of the United
States, on the adjoining shorelines, the waters of the contiguous zone,
into waters of the exclusive economic zone, or that may affect natural
resources belonging to, appertaining to, or under the exclusive
management authority of the United States (See sections 311(c)(1) and
502(7) of the CWA).
(2) Releases into the environment of hazardous substances, and
pollutants or contaminants which may present an imminent and substantial
danger to public health or welfare of the United States.
(b) The NCP provides for efficient, coordinated, and effective
response to
[[Page 7]]
discharges of oil and releases of hazardous substances, pollutants, and
contaminants in accordance with the authorities of CERCLA and the CWA.
It provides for:
(1) The national response organization that may be activated in
response actions. It specifies responsibilities among the federal,
state, and local governments and describes resources that are available
for response.
(2) The establishment of requirements for federal, regional, and
area contingency plans. It also summarizes state and local emergency
planning requirements under SARA Title III.
(3) Procedures for undertaking removal actions pursuant to section
311 of the CWA.
(4) Procedures for undertaking response actions pursuant to CERCLA.
(5) Procedures for involving state governments in the initiation,
development, selection, and implementation of response actions, pursuant
to CERCLA.
(6) Listing of federal trustees for natural resources for purposes
of CERCLA and the CWA.
(7) Procedures for the participation of other persons in response
actions.
(8) Procedures for compiling and making available an administrative
record for response actions.
(9) National procedures for the use of dispersants and other
chemicals in removals under the CWA and response actions under CERCLA.
(c) In implementing the NCP, consideration shall be given to
international assistance plans and agreements, security regulations and
responsibilities based on international agreements, federal statutes,
and executive orders. Actions taken pursuant to the provisions of any
applicable international joint contingency plans shall be consistent
with the NCP, to the greatest extent possible. The Department of State
shall be consulted, as appropriate, prior to taking any action which may
affect its activities.
(d) Additionally, the NCP applies to and is in effect when the
Federal Response Plan and some or all its Emergency Support Functions
(ESFs) are activated.
Sec. 300.4 Abbreviations.
(a) Department and Agency Title Abbreviations:
ATSDR--Agency for Toxic Substances and Disease Registry
CDC--Centers for Disease Control
DOC--Department of Commerce
DOD--Department of Defense
DOE--Department of Energy
DOI--Department of the Interior
DOJ--Department of Justice
DOL--Department of Labor
DOS--Department of State
DOT--Department of Transportation
EPA--Environmental Protection Agency
FEMA--Federal Emergency Management Agency
GSA--General Services Administration
HHS--Department of Health and Human Services
NIOSH--National Institute for Occupational Safety and Health
NOAA--National Oceanic and Atmospheric Administration
OSHA--Occupational Health and Safety Administration
RSPA--Research and Special Programs Administration
USCG--United States Coast Guard
USDA--United States Department of Agriculture
Note: Reference is made in the NCP to both the Nuclear Regulatory
Commission and the National Response Center. In order to avoid
confusion, the NCP will spell out Nuclear Regulatory Commission and use
the abbreviation ``NRC'' only with respect to the National Response
Center.
(b) Operational Abbreviations:
ACP--Area Contingency Plan
ARARs--Applicable or Relevant and Appropriate Requirements
CERCLIS--CERCLA Information System
CRC--Community Relations Coordinator
CRP--Community Relations Plan
DRAT--District Response Advisory Team
DRG--District Response Group
ERT--Environmental Response Team
ESF--Emergency Support Function
FCO--Federal Coordinating Officer
FRERP--Federal Radiological Emergency Response Plan
FRP--Federal Response Plan
FS--Feasibility Study
HRS--Hazard Ranking System
LEPC--Local Emergency Planning Committee
NCP--National Contingency Plan
NPFC--National Pollution Funds Center
NPL--National Priorities List
NRC--National Response Center
NRS--National Response System
NRT--National Response Team
NSF--National Strike Force
[[Page 8]]
NSFCC--National Strike Force Coordination Center
O&M--Operation and Maintenance
OSC--On-Scene Coordinator
OSLTF--Oil Spill Liability Trust Fund
PA--Preliminary Assessment
PIAT--Public Information Assist Team
RA--Remedial Action
RCP--Regional Contingency Plan
RD--Remedial Design
RERT--Radiological Emergency Response Team
RI--Remedial Investigation
ROD--Record of Decision
RPM--Remedial Project Manager
RRC--Regional Response Center
RRT--Regional Response Team
SAC--Support Agency Coordinator
SEMS--Superfund Enterprise Management System
SERC--State Emergency Response Commission
SI--Site Inspection
SMOA--Superfund Memorandum of Agreement
SONS--Spill of National Significance
SSC--Scientific Support Coordinator
SUPSALV--United States Navy Supervisor of Salvage
USFWS--United States Fish and Wildlife Service
[59 FR 47416, Sept. 15, 1994, as amended at 79 FR 65592, Nov. 5, 2014]
Sec. 300.5 Definitions.
Terms not defined in this section have the meaning given by CERCLA,
the OPA, or the CWA.
Activation means notification by telephone or other expeditious
manner or, when required, the assembly of some or all appropriate
members of the RRT or NRT.
Alternative water supplies as defined by section 101(34) of CERCLA,
includes, but is not limited to, drinking water and household water
supplies.
Applicable requirements means those cleanup standards, standards of
control, and other substantive requirements, criteria, or limitations
promulgated under federal environmental or state environmental or
facility siting laws that specifically address a hazardous substance,
pollutant, contaminant, remedial action, location, or other circumstance
found at a CERCLA site. Only those state standards that are identified
by a state in a timely manner and that are more stringent than federal
requirements may be applicable.
Area Committee (AC) as provided for by CWA sections 311(a)(18) and
(j)(4), means the entity appointed by the President consisting of
members from qualified personnel of federal, state, and local agencies
with responsibilities that include preparing an area contingency plan
for an area designated by the President.
Area contingency plan (ACP) as provided for by CWA sections
311(a)(19) and (j)(4), means the plan prepared by an Area Committee that
is developed to be implemented in conjunction with the NCP and RCP, in
part to address removal of a worst case discharge and to mitigate or
prevent a substantial threat of such a discharge from a vessel, offshore
facility, or onshore facility operating in or near an area designated by
the President.
Bioremediation agents means microbiological cultures, enzyme
additives, or nutrient additives that are deliberately introduced into
an oil discharge and that will significantly increase the rate of
biodegradation to mitigate the effects of the discharge.
Burning agents means those additives that, through physical or
chemical means, improve the combustibility of the materials to which
they are applied.
CERCLA is the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986.
CERCLIS was the abbreviation for the CERCLA Information System. This
system has been retired and has been replaced with SEMS, the Superfund
Enterprise Management System.
Chemical agents means those elements, compounds, or mixtures that
coagulate, disperse, dissolve, emulsify, foam, neutralize, precipitate,
reduce, solubilize, oxidize, concentrate, congeal, entrap, fix, make the
pollutant mass more rigid or viscous, or otherwise facilitate the
mitigation of deleterious effects or the removal of the pollutant from
the water. Chemical agents include biological additives, dispersants,
sinking agents, miscellaneous oil spill control agents, and burning
agents, but do not include sorbents.
[[Page 9]]
Claim for purposes of a release under CERCLA, means a demand in
writing for a sum certain; for purposes of a discharge under CWA, it
means a request, made in writing for a sum certain, for compensation for
damages or removal costs resulting from an incident.
Claimant as defined by section 1001 of the OPA means any person or
government who presents a claim for compensation under Title I of the
OPA.
Coastal waters for the purposes of classifying the size of
discharges, means the waters of the coastal zone except for the Great
Lakes and specified ports and harbors on inland rivers.
Coastal zone as defined for the purpose of the NCP, means all United
States waters subject to the tide, United States waters of the Great
Lakes, specified ports and harbors on inland rivers, waters of the
contiguous zone, other waters of the high seas subject to the NCP, and
the land surface or land substrata, ground waters, and ambient air
proximal to those waters. The term coastal zone delineates an area of
federal responsibility for response action. Precise boundaries are
determined by EPA/USCG agreements and identified in federal regional
contingency plans.
Coast Guard District Response Group (DRG) as provided for by CWA
sections 311(a)(20) and (j)(3), means the entity established by the
Secretary of the department in which the USCG is operating, within each
USCG district, and shall consist of: the combined USCG personnel and
equipment, including marine firefighting equipment, of each port in the
district; additional prepositioned response equipment; and a district
response advisory team.
Community relations means EPA's program to inform and encourage
public participation in the Superfund process and to respond to
community concerns. The term ``public'' includes citizens directly
affected by the site, other interested citizens or parties, organized
groups, elected officials, and potentially responsible parties (PRPs).
Community relations coordinator means lead agency staff who work
with the OSC/RPM to involve and inform the public about the Superfund
process and response actions in accordance with the interactive
community relations requirements set forth in the NCP.
Contiguous zone means the zone of the high seas, established by the
United States under Article 24 of the Convention on the Territorial Sea
and Contiguous Zone, which is contiguous to the territorial sea and
which extends nine miles seaward from the outer limit of the territorial
sea.
Cooperative agreement is a legal instrument EPA uses to transfer
money, property, services, or anything of value to a recipient to
accomplish a public purpose in which substantial EPA involvement is
anticipated during the performance of the project.
Damages as defined by section 1001 of the OPA means damages
specified in section 1002(b) of the Act, and includes the cost of
assessing these damages.
Discharge as defined by section 311(a)(2) of the CWA, includes, but
is not limited to, any spilling, leaking, pumping, pouring, emitting,
emptying, or dumping of oil, but excludes discharges in compliance with
a permit under section 402 of the CWA, discharges resulting from
circumstances identified and reviewed and made a part of the public
record with respect to a permit issued or modified under section 402 of
the CWA, and subject to a condition in such permit, or continuous or
anticipated intermittent discharges from a point source, identified in a
permit or permit application under section 402 of the CWA, that are
caused by events occurring within the scope of relevant operating or
treatment systems. For purposes of the NCP, discharge also means
substantial threat of discharge.
Dispersants means those chemical agents that emulsify, disperse, or
solubilize oil into the water column or promote the surface spreading of
oil slicks to facilitate dispersal of the oil into the water column.
Drinking water supply as defined by section 101(7) of CERCLA, means
any raw or finished water source that is or may be used by a public
water system (as defined in the Safe Drinking Water Act (42 U.S.C. 300
et seq.) or as drinking water by one or more individuals.
Environment as defined by section 101(8) of CERCLA, means the
navigable waters, the waters of the contiguous
[[Page 10]]
zone, and the ocean waters of which the natural resources are under the
exclusive management authority of the United States under the Magnuson
Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.); and
any other surface water, ground water, drinking water supply, land
surface or subsurface strata, or ambient air within the United States or
under the jurisdiction of the United States.
Exclusive economic zone, as defined by OPA section 1001, means the
zone established by Presidential Proclamation Numbered 5030, dated March
10, 1983, including the ocean waters of the areas referred to as
``eastern special areas'' in Article 3(1) of the Agreement between the
United States of America and the Union of Soviet Socialist Republics on
the Maritime Boundary, signed June 1, 1990.
Facility as defined by section 101(9) of CERCLA, means any building,
structure, installation, equipment, pipe or pipeline (including any pipe
into a sewer or publicly owned treatment works), well, pit, pond,
lagoon, impoundment, ditch, landfill, storage container, motor vehicle,
rolling stock, or aircraft, or any site or area, where a hazardous
substance has been deposited, stored, disposed of, or placed, or
otherwise come to be located; but does not include any consumer product
in consumer use or any vessel. As defined by section 1001 of the OPA, it
means any structure, group of structures, equipment, or device (other
than a vessel) which is used for one or more of the following purposes:
Exploring for, drilling for, producing, storing, handling, transferring,
processing, or transporting oil. This term includes any motor vehicle,
rolling stock, or pipeline used for one or more of these purposes.
Feasibility study (FS) means a study undertaken by the lead agency
to develop and evaluate options for remedial action. The FS emphasizes
data analysis and is generally performed concurrently and in an
interactive fashion with the remedial investigation (RI), using data
gathered during the RI. The RI data are used to define the objectives of
the response action, to develop remedial action alternatives, and to
undertake an initial screening and detailed analysis of the
alternatives. The term also refers to a report that describes the
results of the study.
Federal Radiological Emergency Response Plan (FRERP) means the
inter-agency agreement for coordinating the response of various
agencies, under a variety of statutes, to a large radiological accident.
The Lead Federal Agency (LFA), defined by the FRERP, activates the FRERP
for any peacetime radiological emergency which, based upon its
professional judgment, is expected to have a significant radiological
effect within the United States, its territories, possessions, or
territorial waters and that could require a response by several federal
agencies.
Federal Response Plan (FRP) means the agreement signed by 27 federal
departments and agencies in April 1987 and developed under the
authorities of the Earthquake Hazards Reduction Act of 1977 (42 U.S.C.
7701 et seq.) and the Disaster Relief Act of 1974 (42 U.S.C. 3231 et
seq.), as amended by the Stafford Disaster Relief Act of 1988.
First federal official means the first federal representative of a
participating agency of the National Response Team to arrive at the
scene of a discharge or a release. This official coordinates activities
under the NCP and may initiate, in consultation with the OSC, any
necessary actions until the arrival of the predesignated OSC. A state
with primary jurisdiction over a site covered by a cooperative agreement
will act in the stead of the first federal official for any incident at
the site.
Fund or Trust Fund means the Hazardous Substance Superfund
established by section 9507 of the Internal Revenue Code of 1986.
Ground water as defined by section 101(12) of CERCLA, means water in
a saturated zone or stratum beneath the surface of land or water.
Hazard Ranking System (HRS) means the method used by EPA to evaluate
the relative potential of hazardous substance releases to cause health
or safety problems, or ecological or environmental damage.
Hazardous substance as defined by section 101(14) of CERCLA, means:
Any
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substance designated pursuant to section 311(b)(2)(A) of the CWA; any
element, compound, mixture, solution, or substance designated pursuant
to section 102 of CERCLA; any hazardous waste having the characteristics
identified under or listed pursuant to section 3001 of the Solid Waste
Disposal Act (but not including any waste the regulation of which under
the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) has been suspended
by Act of Congress); any toxic pollutant listed under section 307(a) of
the CWA; any hazardous air pollutant listed under section 112 of the
Clean Air Act (42 U.S.C. 7521 et seq.); and any imminently hazardous
chemical substance or mixture with respect to which the EPA
Administrator has taken action pursuant to section 7 of the Toxic
Substances Control Act (15 U.S.C. 2601 et seq.). The term does not
include petroleum, including crude oil or any fraction thereof which is
not otherwise specifically listed or designated as a hazardous substance
in the first sentence of this paragraph, and the term does not include
natural gas, natural gas liquids, liquified natural gas, or synthetic
gas usable for fuel (or mixtures of natural gas and such synthetic gas).
Indian tribe as defined by section 101(36) of CERCLA, means any
Indian tribe, band, nation, or other organized group or community,
including any Alaska Native village but not including any Alaska Native
regional or village corporation, which is recognized as eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians. ``Indian tribe,'' as defined by OPA
section 1001, means any Indian tribe, band, nation, or other organized
group or community, but not including any Alaska Native regional or
village corporation, which is recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians and has governmental authority over lands
belonging to or controlled by the tribe.
Inland waters, for the purposes of classifying the size of
discharges, means those waters of the United States in the inland zone,
waters of the Great Lakes, and specified ports and harbors on inland
rivers.
Inland zone means the environment inland of the coastal zone
excluding the Great Lakes and specified ports and harbors on inland
rivers. The term inland zone delineates an area of federal
responsibility for response action. Precise boundaries are determined by
EPA/USCG agreements and identified in federal regional contingency
plans.
Lead administrative trustee means a natural resource trustee who is
designated on an incident-by-incident basis for the purpose of
preassessment and damage assessment and chosen by the other trustees
whose natural resources are affected by the incident. The lead
administrative trustee facilitates effective and efficient communication
during response operations between the OSC and the other natural
resource trustees conducting activities associated with damage
assessment, and is responsible for applying to the OSC for access to
response operations resources on behalf of all trustees for initiation
of a damage assessment.
Lead agency means the agency that provides the OSC/RPM to plan and
implement response actions under the NCP. EPA, the USCG, another federal
agency, or a state (or political subdivision of a state) operating
pursuant to a contract or cooperative agreement executed pursuant to
section 104(d)(1) of CERCLA, or designated pursuant to a Superfund
Memorandum of Agreement (SMOA) entered into pursuant to subpart F of the
NCP or other agreements may be the lead agency for a response action. In
the case of a release of a hazardous substance, pollutant, or
contaminant, where the release is on, or the sole source of the release
is from, any facility or vessel under the jurisdiction, custody, or
control of Department of Defense (DOD) or Department of Energy (DOE),
then DOD or DOE will be the lead agency. Where the release is on, or the
sole source of the release is from, any facility or vessel under the
jurisdiction, custody, or control of a federal agency other than EPA,
the USCG, DOD, or DOE, then that agency will be the lead agency for
remedial actions and removal actions other than emergencies. The federal
[[Page 12]]
agency maintains its lead agency responsibilities whether the remedy is
selected by the federal agency for non-NPL sites or by EPA and the
federal agency or by EPA alone under CERCLA section 120. The lead agency
will consult with the support agency, if one exists, throughout the
response process.
Management of migration means actions that are taken to minimize and
mitigate the migration of hazardous substances or pollutants or
contaminants and the effects of such migration. Measures may include,
but are not limited to, management of a plume of contamination,
restoration of a drinking water aquifer, or surface water restoration.
Miscellaneous oil spill control agent is any product, other than a
dispersant, sinking agent, surface washing agent, surface collecting
agent, bioremediation agent, burning agent, or sorbent that can be used
to enhance oil spill cleanup, removal, treatment, or mitigation.
National Pollution Funds Center (NPFC) means the entity established
by the Secretary of Transportation whose function is the administration
of the Oil Spill Liability Trust Fund (OSLTF). Among the NPFC's duties
are: providing appropriate access to the OSLTF for federal agencies and
states for removal actions and for federal trustees to initiate the
assessment of natural resource damages; providing appropriate access to
the OSLTF for claims; and coordinating cost recovery efforts.
National Priorities List (NPL) means the list, compiled by EPA
pursuant to CERCLA section 105, of uncontrolled hazardous substance
releases in the United States that are priorities for long-term remedial
evaluation and response.
National response system (NRS) is the mechanism for coordinating
response actions by all levels of government in support of the OSC/RPM.
The NRS is composed of the NRT, RRTs, OSC/RPM, Area Committees, and
Special Teams and related support entities. The NRS is capable of
expanding or contracting to accommodate the response effort required by
the size or complexity of the discharge or release.
National Strike Force (NSF) is a special team established by the
USCG, including the three USCG Strike Teams, the Public Information
Assist Team (PIAT), and the National Strike Force Coordination Center.
The NSF is available to assist OSCs/RPMs in their preparedness and
response duties.
National Strike Force Coordination Center (NSFCC), authorized as the
National Response Unit by CWA sections 311(a)(23) and (j)(2), means the
entity established by the Secretary of the department in which the USCG
is operating at Elizabeth City, North Carolina with responsibilities
that include administration of the USCG Strike Teams, maintenance of
response equipment inventories and logistic networks, and conducting a
national exercise program.
Natural resources means land, fish, wildlife, biota, air, water,
ground water, drinking water supplies, and other such resources
belonging to, managed by, held in trust by, appertaining to, or
otherwise controlled by the United States (including the resources of
the exclusive economic zone defined by the Magnuson Fishery Conservation
and Management Act of 1976), any state or local government, any foreign
government, any Indian tribe, or, if such resources are subject to a
trust restriction on alienation, any member of an Indian tribe.
Navigable waters means the waters of the United States, including
the territorial seas.
(1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and
its implementing regulations, subject to the exclusions in paragraph (2)
of this definition, the term ``waters of the United States'' means:
(i) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
(ii) All interstate waters, including interstate wetlands;
(iii) The territorial seas;
(iv) All impoundments of waters otherwise identified as waters of
the United States under this section;
(v) All tributaries, as defined in paragraph (3)(iii) of this
definition, of
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waters identified in paragraphs (1)(i) through (iii) of this definition;
(vi) All waters adjacent to a water identified in paragraphs (1)(i)
through (v) of this definition, including wetlands, ponds, lakes,
oxbows, impoundments, and similar waters;
(vii) All waters in paragraphs (1)(vii)(A) through (E) of this
definition where they are determined, on a case-specific basis, to have
a significant nexus to a water identified in paragraphs (1)(i) through
(iii) of this definition. The waters identified in each of paragraphs
(1)(vii)(A) through (E) of this definition are similarly situated and
shall be combined, for purposes of a significant nexus analysis, in the
watershed that drains to the nearest water identified in paragraphs
(1)(i) through (iii) of this definition. Waters identified in this
paragraph shall not be combined with waters identified in paragraph
(1)(vi) of this definition when performing a significant nexus analysis.
If waters identified in this paragraph are also an adjacent water under
paragraph (1)(vi), they are an adjacent water and no case-specific
significant nexus analysis is required.
(A) Prairie potholes. Prairie potholes are a complex of glacially
formed wetlands, usually occurring in depressions that lack permanent
natural outlets, located in the upper Midwest.
(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays
are ponded, depressional wetlands that occur along the Atlantic coastal
plain.
(C) Pocosins. Pocosins are evergreen shrub and tree dominated
wetlands found predominantly along the Central Atlantic coastal plain.
(D) Western vernal pools. Western vernal pools are seasonal wetlands
located in parts of California and associated with topographic
depression, soils with poor drainage, mild, wet winters and hot, dry
summers.
(E) Texas coastal prairie wetlands. Texas coastal prairie wetlands
are freshwater wetlands that occur as a mosaic of depressions, ridges,
intermound flats, and mima mound wetlands located along the Texas Gulf
Coast.
(viii) All waters located within the 100-year floodplain of a water
identified in paragraphs (1)(i) through (iii) of this definition and all
waters located within 4,000 feet of the high tide line or ordinary high
water mark of a water identified in paragraphs (1)(i) through (v) of
this definition where they are determined on a case-specific basis to
have a significant nexus to a water identified in paragraphs (1)(i)
through (iii) of this definition. For waters determined to have a
significant nexus, the entire water is a water of the United States if a
portion is located within the 100-year floodplain of a water identified
in paragraphs (1)(i) through (iii) of this definition or within 4,000
feet of the high tide line or ordinary high water mark. Waters
identified in this paragraph shall not be combined with waters
identified in paragraph (1)(vi) of this definition when performing a
significant nexus analysis. If waters identified in this paragraph are
also an adjacent water under paragraph (1)(vi), they are an adjacent
water and no case-specific significant nexus analysis is required.
(2) The following are not ``waters of the United States'' even where
they otherwise meet the terms of paragraphs (1)(iv) through (viii) of
this definition.
(i) Waste treatment systems (other than cooling ponds meeting the
criteria of this paragraph) are not waters of the United States.
(ii) Prior converted cropland. Notwithstanding the determination of
an area's status as prior converted cropland by any other Federal
agency, for the purposes of the Clean Water Act, the final authority
regarding Clean Water Act jurisdiction remains with EPA.
(iii) The following ditches:
(A) Ditches with ephemeral flow that are not a relocated tributary
or excavated in a tributary.
(B) Ditches with intermittent flow that are not a relocated
tributary, excavated in a tributary, or drain wetlands.
(C) Ditches that do not flow, either directly or through another
water, into a water identified in paragraphs (1)(i) through (iii) of
this definition.
(iv) The following features:
(A) Artificially irrigated areas that would revert to dry land
should application of water to that area cease;
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(B) Artificial, constructed lakes and ponds created in dry land such
as farm and stock watering ponds, irrigation ponds, settling basins,
fields flooded for rice growing, log cleaning ponds, or cooling ponds;
(C) Artificial reflecting pools or swimming pools created in dry
land;
(D) Small ornamental waters created in dry land;
(E) Water-filled depressions created in dry land incidental to
mining or construction activity, including pits excavated for obtaining
fill, sand, or gravel that fill with water;
(F) Erosional features, including gullies, rills, and other
ephemeral features that do not meet the definition of tributary, non-
wetland swales, and lawfully constructed grassed waterways; and
(G) Puddles.
(v) Groundwater, including groundwater drained through subsurface
drainage systems.
(vi) Stormwater control features constructed to convey, treat, or
store stormwater that are created in dry land.
(vii) Wastewater recycling structures constructed in dry land;
detention and retention basins built for wastewater recycling;
groundwater recharge basins; percolation ponds built for wastewater
recycling; and water distributary structures built for wastewater
recycling.
(3) In this definition, the following terms apply:
(i) Adjacent. The term adjacent means bordering, contiguous, or
neighboring a water identified in paragraphs (1)(i) through (v) of this
definition, including waters separated by constructed dikes or barriers,
natural river berms, beach dunes, and the like. For purposes of
adjacency, an open water such as a pond or lake includes any wetlands
within or abutting its ordinary high water mark. Adjacency is not
limited to waters located laterally to a water identified in paragraphs
(1)(i) through (v) of this definition. Adjacent waters also include all
waters that connect segments of a water identified in paragraphs (1)(i)
through (v) or are located at the head of a water identified in
paragraphs (1)(i) through (v) of this definition and are bordering,
contiguous, or neighboring such water. Waters being used for established
normal farming, ranching, and silviculture activities (33 U.S.C.
1344(f)) are not adjacent.
(ii) Neighboring. The term neighboring means:
(A) All waters located within 100 feet of the ordinary high water
mark of a water identified in paragraphs (1)(i) through (v) of this
definition. The entire water is neighboring if a portion is located
within 100 feet of the ordinary high water mark;
(B) All waters located within the 100-year floodplain of a water
identified in paragraphs (1)(i) through (v) of this definition and not
more than 1,500 feet from the ordinary high water mark of such water.
The entire water is neighboring if a portion is located within 1,500
feet of the ordinary high water mark and within the 100-year floodplain;
(C) All waters located within 1,500 feet of the high tide line of a
water identified in paragraphs (1)(i) or (1)(iii) of this definition,
and all waters within 1,500 feet of the ordinary high water mark of the
Great Lakes. The entire water is neighboring if a portion is located
within 1,500 feet of the high tide line or within 1,500 feet of the
ordinary high water mark of the Great Lakes.
(iii) Tributary and tributaries. The terms tributary and tributaries
each mean a water that contributes flow, either directly or through
another water (including an impoundment identified in paragraph (1)(iv)
of this definition), to a water identified in paragraphs (1)(i) through
(iii) of this definition that is characterized by the presence of the
physical indicators of a bed and banks and an ordinary high water mark.
These physical indicators demonstrate there is volume, frequency, and
duration of flow sufficient to create a bed and banks and an ordinary
high water mark, and thus to qualify as a tributary. A tributary can be
a natural, man-altered, or man-made water and includes waters such as
rivers, streams, canals, and ditches not excluded under paragraph (2) of
this definition. A water that otherwise qualifies as a tributary under
this definition does not lose its status as a tributary if, for any
length, there are one or more constructed breaks (such as
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bridges, culverts, pipes, or dams), or one or more natural breaks (such
as wetlands along the run of a stream, debris piles, boulder fields, or
a stream that flows underground) so long as a bed and banks and an
ordinary high water mark can be identified upstream of the break. A
water that otherwise qualifies as a tributary under this definition does
not lose its status as a tributary if it contributes flow through a
water of the United States that does not meet the definition of
tributary or through a non-jurisdictional water to a water identified in
paragraphs (1)(i) through (iii) of this definition.
(iv) Wetlands. The term wetlands means those areas that are
inundated or saturated by surface or groundwater at a frequency and
duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally include swamps, marshes,
bogs, and similar areas.
(v) Significant nexus. The term significant nexus means that a
water, including wetlands, either alone or in combination with other
similarly situated waters in the region, significantly affects the
chemical, physical, or biological integrity of a water identified in
paragraphs (1)(i) through (iii) of this definition. The term ``in the
region'' means the watershed that drains to the nearest water identified
in paragraphs (1)(i) through (iii) of this definition. For an effect to
be significant, it must be more than speculative or insubstantial.
Waters are similarly situated when they function alike and are
sufficiently close to function together in affecting downstream waters.
For purposes of determining whether or not a water has a significant
nexus, the water's effect on downstream (1)(i) through (iii) waters
shall be assessed by evaluating the aquatic functions identified in
paragraphs (3)(v)(A) through (I) of this definition. A water has a
significant nexus when any single function or combination of functions
performed by the water, alone or together with similarly situated waters
in the region, contributes significantly to the chemical, physical, or
biological integrity of the nearest water identified in paragraphs
(1)(i) through (iii) of this definition. Functions relevant to the
significant nexus evaluation are the following:
(A) Sediment trapping,
(B) Nutrient recycling,
(C) Pollutant trapping, transformation, filtering, and transport,
(D) Retention and attenuation of flood waters,
(E) Runoff storage,
(F) Contribution of flow,
(G) Export of organic matter,
(H) Export of food resources, and
(I) Provision of life cycle dependent aquatic habitat (such as
foraging, feeding, nesting, breeding, spawning, or use as a nursery
area) for species located in a water identified in paragraphs (1)(i)
through (iii) of this definition.
(vi) Ordinary high water mark. The term ordinary high water mark
means that line on the shore established by the fluctuations of water
and indicated by physical characteristics such as a clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
(vii) High tide line. The term high tide line means the line of
intersection of the land with the water's surface at the maximum height
reached by a rising tide. The high tide line may be determined, in the
absence of actual data, by a line of oil or scum along shore objects, a
more or less continuous deposit of fine shell or debris on the foreshore
or berm, other physical markings or characteristics, vegetation lines,
tidal gages, or other suitable means that delineate the general height
reached by a rising tide. The line encompasses spring high tides and
other high tides that occur with periodic frequency but does not include
storm surges in which there is a departure from the normal or predicted
reach of the tide due to the piling up of water against a coast by
strong winds such as those accompanying a hurricane or other intense
storm.
(4) Applicability date. This definition is applicable beginning on
February 6, 2020.
Offshore facility as defined by section 101(17) of CERCLA and
section
[[Page 16]]
311(a)(11) of the CWA, means any facility of any kind located in, on, or
under any of the navigable waters of the United States, and any facility
of any kind which is subject to the jurisdiction of the United States
and is located in, on, or under any other waters, other than a vessel or
a public vessel.
Oil as defined by section 311(a)(1) of the CWA, means oil of any
kind or in any form, including, but not limited to, petroleum, fuel oil,
sludge, oil refuse, and oil mixed with wastes other than dredged spoil.
Oil, as defined by section 1001 of the OPA means oil of any kind or in
any form, including, but not limited to, petroleum, fuel oil, sludge,
oil refuse, and oil mixed with wastes other than dredged spoil, but does
not include petroleum, including crude oil or any fraction thereof,
which is specifically listed or designated as a hazardous substance
under subparagraphs (A) through (F) of section 101(14) of the
Comprehensive Environmental Response, Compensation, and Liability Act
(42 U.S.C. 9601) and which is subject to the provisions of that Act.
Oil Spill Liability Trust Fund (OSLTF) means the fund established
under section 9509 of the Internal Revenue Code of 1986 (26 U.S.C.
9509).
On-scene coordinator (OSC) means the federal official predesignated
by EPA or the USCG to coordinate and direct responses under subpart D,
or the government official designated by the lead agency to coordinate
and direct removal actions under subpart E of the NCP.
Onshore facility as defined by section 101(18) of CERCLA, means any
facility (including, but not limited to, motor vehicles and rolling
stock) of any kind located in, on, or under any land or non-navigable
waters within the United States; and, as defined by section 311(a)(10)
of the CWA, means any facility (including, but not limited to, motor
vehicles and rolling stock) of any kind located in, on, or under any
land within the United States other than submerged land.
On-site means the areal extent of contamination and all suitable
areas in very close proximity to the contamination necessary for
implementation of the response action.
Operable unit means a discrete action that comprises an incremental
step toward comprehensively addressing site problems. This discrete
portion of a remedial response manages migration, or eliminates or
mitigates a release, threat of a release, or pathway of exposure. The
cleanup of a site can be divided into a number of operable units,
depending on the complexity of the problems associated with the site.
Operable units may address geographical portions of a site, specific
site problems, or initial phases of an action, or may consist of any set
of actions performed over time or any actions that are concurrent but
located in different parts of a site.
Operation and maintenance (O&M) means measures required to maintain
the effectiveness of response actions.
Person as defined by section 101(21) of CERCLA, means an individual,
firm, corporation, association, partnership, consortium, joint venture,
commercial entity, United States government, state, municipality,
commission, political subdivision of a state, or any interstate body. As
defined by section 1001 of the OPA, ``person'' means an individual,
corporation, partnership, association, state, municipality, commission,
or political subdivision of a state, or any interstate body.
Pollutant or contaminant as defined by section 101(33) of CERCLA,
shall include, but not be limited to, any element, substance, compound,
or mixture, including disease-causing agents, which after release into
the environment and upon exposure, ingestion, inhalation, or
assimilation into any organism, either directly from the environment or
indirectly by ingestion through food chains, will or may reasonably be
anticipated to cause death, disease, behavioral abnormalities, cancer,
genetic mutation, physiological malfunctions (including malfunctions in
reproduction) or physical deformations, in such organisms or their
offspring. The term does not include petroleum, including crude oil or
any fraction thereof which is not otherwise specifically listed or
designated as a hazardous substance under section 101(14) (A) through
(F) of CERCLA, nor does it include natural gas, liquified
[[Page 17]]
natural gas, or synthetic gas of pipeline quality (or mixtures of
natural gas and such synthetic gas). For purposes of the NCP, the term
pollutant or contaminant means any pollutant or contaminant that may
present an imminent and substantial danger to public health or welfare
of the United States.
Post-removal site control means those activities that are necessary
to sustain the integrity of a Fund-financed removal action following its
conclusion. Post-removal site control may be a removal or remedial
action under CERCLA. The term includes, without being limited to,
activities such as relighting gas flares, replacing filters, and
collecting leachate.
Preliminary assessment (PA) under CERCLA means review of existing
information and an off-site reconnaissance, if appropriate, to determine
if a release may require additional investigation or action. A PA may
include an on-site reconnaissance, if appropriate.
Public participation, see the definition for community relations.
Public vessel as defined by section 311(a)(4) of the CWA, means a
vessel owned or bareboat-chartered and operated by the United States, or
by a state or political subdivision thereof, or by a foreign nation,
except when such vessel is engaged in commerce.
Quality assurance project plan (QAPP) is a written document,
associated with all remedial site sampling activities, which presents in
specific terms the organization (where applicable), objectives,
functional activities, and specific quality assurance (QA) and quality
control (QC) activities designed to achieve the data quality objectives
of a specific project(s) or continuing operation(s). The QAPP is
prepared for each specific project or continuing operation (or group of
similar projects or continuing operations). The QAPP will be prepared by
the responsible program office, regional office, laboratory, contractor,
recipient of an assistance agreement, or other organization. For an
enforcement action, potentially responsible parties may prepare a QAPP
subject to lead agency approval.
Release as defined by section 101(22) of CERCLA, means any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing into the environment
(including the abandonment or discarding of barrels, containers, and
other closed receptacles containing any hazardous substance or pollutant
or contaminant), but excludes: Any release which results in exposure to
persons solely within a workplace, with respect to a claim which such
persons may assert against the employer of such persons; emissions from
the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel,
or pipeline pumping station engine; release of source, byproduct, or
special nuclear material from a nuclear incident, as those terms are
defined in the Atomic Energy Act of 1954, if such release is subject to
requirements with respect to financial protection established by the
Nuclear Regulatory Commission under section 170 of such Act, or, for the
purposes of section 104 of CERCLA or any other response action, any
release of source, byproduct, or special nuclear material from any
processing site designated under section 102(a)(1) or 302(a) of the
Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. 7901 et
seq.); and the normal application of fertilizer. For purposes of the
NCP, release also means threat of release.
Relevant and appropriate requirements means those cleanup standards,
standards of control, and other substantive requirements, criteria, or
limitations promulgated under federal environmental or state
environmental or facility siting laws that, while not ``applicable'' to
a hazardous substance, pollutant, contaminant, remedial action,
location, or other circumstance at a CERCLA site, address problems or
situations sufficiently similar to those encountered at the CERCLA site
that their use is well suited to the particular site. Only those state
standards that are identified in a timely manner and are more stringent
than federal requirements may be relevant and appropriate.
Remedial design (RD) means the technical analysis and procedures
which follow the selection of remedy for a site and result in a detailed
set of plans and specifications for implementation of the remedial
action.
[[Page 18]]
Remedial investigation (RI) is a process undertaken by the lead
agency to determine the nature and extent of the problem presented by
the release. The RI emphasizes data collection and site
characterization, and is generally performed concurrently and in an
interactive fashion with the feasibility study. The RI includes sampling
and monitoring, as necessary, and includes the gathering of sufficient
information to determine the necessity for remedial action and to
support the evaluation of remedial alternatives.
Remedial project manager (RPM) means the official designated by the
lead agency to coordinate, monitor, or direct remedial or other response
actions under subpart E of the NCP.
Remedy or remedial action (RA) means those actions consistent with
permanent remedy taken instead of, or in addition to, removal action in
the event of a release or threatened release of a hazardous substance
into the environment, to prevent or minimize the release of hazardous
substances so that they do not migrate to cause substantial danger to
present or future public health or welfare or the environment. The term
includes, but is not limited to, such actions at the location of the
release as storage, confinement, perimeter protection using dikes,
trenches, or ditches, clay cover, neutralization, cleanup of released
hazardous substances and associated contaminated materials, recycling or
reuse, diversion, destruction, segregation of reactive wastes, dredging
or excavations, repair or replacement of leaking containers, collection
of leachate and runoff, on-site treatment or incineration, provision of
alternative water supplies, any monitoring reasonably required to assure
that such actions protect the public health and welfare and the
environment and, where appropriate, post-removal site control
activities. The term includes the costs of permanent relocation of
residents and businesses and community facilities (including the cost of
providing ``alternative land of equivalent value'' to an Indian tribe
pursuant to CERCLA section 126(b)) where EPA determines that, alone or
in combination with other measures, such relocation is more cost-
effective than, and environmentally preferable to, the transportation,
storage, treatment, destruction, or secure disposition off-site of such
hazardous substances, or may otherwise be necessary to protect the
public health or welfare; the term includes off-site transport and off-
site storage, treatment, destruction, or secure disposition of hazardous
substances and associated contaminated materials. For the purpose of the
NCP, the term also includes enforcement activities related thereto.
Remove or removal as defined by section 311(a)(8) of the CWA, refers
to containment and removal of oil or hazardous substances from the water
and shorelines or the taking of such other actions as may be necessary
to minimize or mitigate damage to the public health or welfare of the
United States (including, but not limited to, fish, shellfish, wildlife,
public and private property, and shorelines and beaches) or to the
environment. For the purpose of the NCP, the term also includes
monitoring of action to remove a discharge. As defined by section
101(23) of CERCLA, remove or removal means the cleanup or removal of
released hazardous substances from the environment; such actions as may
be necessary taken in the event of the threat of release of hazardous
substances into the environment; such actions as may be necessary to
monitor, assess, and evaluate the release or threat of release of
hazardous substances; the disposal of removed material; or the taking of
such other actions as may be necessary to prevent, minimize, or mitigate
damage to the public health or welfare of the United States or to the
environment, which may otherwise result from a release or threat of
release. The term includes, in addition, without being limited to,
security fencing or other measures to limit access, provision of
alternative water supplies, temporary evacuation and housing of
threatened individuals not otherwise provided for, action taken under
section 104(b) of CERCLA, post-removal site control, where appropriate,
and any emergency assistance which may be provided under the Disaster
Relief Act of 1974. For the purpose of the NCP, the term also includes
enforcement activities related thereto.
[[Page 19]]
Removal costs as defined by section 1001 of the OPA means the costs
of removal that are incurred after a discharge of oil has occurred, or
in any case in which there is a substantial threat of a discharge of
oil, the costs to prevent, minimize, or mitigate oil pollution from such
an incident.
Respond or response as defined by section 101(25) of CERCLA, means
remove, removal, remedy, or remedial action, including enforcement
activities related thereto.
Responsible party as defined by section 1001 of the OPA, means the
following:
(1) Vessels--In the case of a vessel, any person owning, operating,
or demise chartering the vessel.
(2) Onshore Facilities--In the case of an onshore facility (other
than a pipeline), any person owning or operating the facility, except a
federal agency, state, municipality, commission, or political
subdivision of a state, or any interstate body, that as the owner
transfers possession and right to use the property to another person by
lease, assignment, or permit.
(3) Offshore Facilities--In the case of an offshore facility (other
than a pipeline or a deepwater port licensed under the Deepwater Port
Act of 1974 (33 U.S.C. 1501 et seq.)), the lessee or permittee of the
area in which the facility is located or the holder of a right of use
and easement granted under applicable state law or the Outer Continental
Shelf Lands Act (43 U.S.C. 1301-1356) for the area in which the facility
is located (if the holder is a different person than the lessee or
permittee), except a federal agency, state, municipality, commission, or
political subdivision of a state, or any interstate body, that as owner
transfers possession and right to use the property to another person by
lease, assignment, or permit.
(4) Deepwater Ports--In the case of a deepwater port licensed under
the Deepwater Port Act of 1974 (33 U.S.C. 1501-1524), the licensee.
(5) Pipelines--In the case of a pipeline, any person owning or
operating the pipeline.
(6) Abandonment--In the case of an abandoned vessel, onshore
facility, deepwater port, pipeline, or offshore facility, the person who
would have been responsible parties immediately prior to the abandonment
of the vessel or facility.
SARA is the Superfund Amendments and Reauthorization Act of 1986. In
addition to certain free-standing provisions of law, it includes
amendments to CERCLA, the Solid Waste Disposal Act, and the Internal
Revenue Code. Among the free-standing provisions of law is Title III of
SARA, also known as the ``Emergency Planning and Community Right-to-Know
Act of 1986'' and Title IV of SARA, also known as the ``Radon Gas and
Indoor Air Quality Research Act of 1986.'' Title V of SARA amending the
Internal Revenue Code is also known as the ``Superfund Revenue Act of
1986.''
SEMS is the abbreviation for the Superfund Enterprise Management
System. SEMS is EPA's comprehensive data management system that
inventories and tracks information about releases addressed or needing
to be addressed by the CERCLA Superfund program. SEMS consolidates
legacy systems including CERCLIS into a single integrated platform. SEMS
contains information for potential and confirmed hazardous waste sites
addressed under the Superfund remedial and removal programs. SEMS
includes sites in the active site inventory and archived sites. The
active site inventory includes sites on the NPL, and sites not on the
NPL where site assessment, removal, remedial, enforcement, cost
recovery, or oversight activities are being planned or conducted.
Archived sites include non-NPL sites that were formerly in the active
site inventory which have no further site assessment, removal, remedial,
enforcement, cost recovery or oversight needed under the Federal
Superfund program based on available information. New information may
warrant return of an archive site to the active inventory. Inclusion of
a specific site or area in SEMS does not represent a determination of
any party's liability, nor does it represent a finding that any response
action is necessary.''
Sinking agents means those additives applied to oil discharges to
sink floating pollutants below the water surface.
Site inspection (SI) means an on-site investigation to determine
whether
[[Page 20]]
there is a release or potential release and the nature of the associated
threats. The purpose is to augment the data collected in the preliminary
assessment and to generate, if necessary, sampling and other field data
to determine if further action or investigation is appropriate.
Size classes of discharges refers to the following size classes of
oil discharges which are provided as guidance to the OSC and serve as
the criteria for the actions delineated in subpart D. They are not meant
to imply associated degrees of hazard to public health or welfare of the
United States, nor are they a measure of environmental injury. Any oil
discharge that poses a substantial threat to public health or welfare of
the United States or the environment or results in significant public
concern shall be classified as a major discharge regardless of the
following quantitative measures:
(1) Minor discharge means a discharge to the inland waters of less
than 1,000 gallons of oil or a discharge to the coastal waters of less
than 10,000 gallons of oil.
(2) Medium discharge means a discharge of 1,000 to 10,000 gallons of
oil to the inland waters or a discharge of 10,000 to 100,000 gallons of
oil to the coastal waters.
(3) Major discharge means a discharge of more than 10,000 gallons of
oil to the inland waters or more than 100,000 gallons of oil to the
coastal waters.
Size classes of releases refers to the following size
classifications which are provided as guidance to the OSC for meeting
pollution reporting requirements in subpart B. The final determination
of the appropriate classification of a release will be made by the OSC
based on consideration of the particular release (e.g., size, location,
impact, etc.):
(1) Minor release means a release of a quantity of hazardous
substance(s), pollutant(s), or contaminant(s) that poses minimal threat
to public health or welfare of the United States or the environment.
(2) Medium release means a release not meeting the criteria for
classification as a minor or major release.
(3) Major release means a release of any quantity of hazardous
substance(s), pollutant(s), or contaminant(s) that poses a substantial
threat to public health or welfare of the United States or the
environment or results in significant public concern.
Sorbents means essentially inert and insoluble materials that are
used to remove oil and hazardous substances from water through
adsorption, in which the oil or hazardous substance is attracted to the
sorbent surface and then adheres to it; absorption, in which the oil or
hazardous substance penetrates the pores of the sorbent material; or a
combination of the two. Sorbents are generally manufactured in
particulate form for spreading over an oil slick or as sheets, rolls,
pillows, or booms. The sorbent material may consist of, but is not
limited to, the following materials:
(1) Organic products--
(i) Peat moss or straw;
(ii) Cellulose fibers or cork;
(iii) Corn cobs;
(iv) Chicken, duck, or other bird feathers.
(2) Mineral compounds--
(i) Volcanic ash or perlite;
(ii) Vermiculite or zeolite.
(3) Synthetic products--
(i) Polypropylene;
(ii) Polyethylene;
(iii) Polyurethane;
(iv) Polyester.
Source control action is the construction or installation and start-
up of those actions necessary to prevent the continued release of
hazardous substances or pollutants or contaminants (primarily from a
source on top of or within the ground, or in buildings or other
structures) into the environment.
Source control maintenance measures are those measures intended to
maintain the effectiveness of source control actions once such actions
are operating and functioning properly, such as the maintenance of
landfill caps and leachate collection systems.
Specified ports and harbors means those ports and harbor areas on
inland rivers, and land areas immediately adjacent to those waters,
where the USCG acts as predesignated on-scene
[[Page 21]]
coordinator. Precise locations are determined by EPA/USCG regional
agreements and identified in federal Regional Contingency Plans and Area
Contingency Plans.
Spill of national significance (SONS) means a spill that due to its
severity, size, location, actual or potential impact on the public
health and welfare or the environment, or the necessary response effort,
is so complex that it requires extraordinary coordination of federal,
state, local, and responsible party resources to contain and clean up
the discharge.
State means the several states of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the
U.S. Virgin Islands, the Commonwealth of the Northern Marianas, and any
other territory or possession over which the United States has
jurisdiction. For purposes of the NCP, the term includes Indian tribes
as defined in the NCP except where specifically noted. Section 126 of
CERCLA provides that the governing body of an Indian tribe shall be
afforded substantially the same treatment as a state with respect to
certain provisions of CERCLA. Section 300.515(b) of the NCP describes
the requirements pertaining to Indian tribes that wish to be treated as
states under CERCLA.
Superfund Memorandum of Agreement (SMOA) means a nonbinding, written
document executed by an EPA Regional Administrator and the head of a
state agency that may establish the nature and extent of EPA and state
interaction during the removal, pre-remedial, remedial, and/or
enforcement response process. The SMOA is not a site-specific document
although attachments may address specific sites. The SMOA generally
defines the role and responsibilities of both the lead and the support
agencies.
Superfund state contract is a joint, legally binding agreement
between EPA and a state to obtain the necessary assurances before a
federal-lead remedial action can begin at a site. In the case of a
political subdivision-lead remedial response, a three-party Superfund
state contract among EPA, the state, and political subdivision thereof,
is required before a political subdivision takes the lead for any phase
of remedial response to ensure state involvement pursuant to section
121(f)(1) of CERCLA. The Superfund state contract may be amended to
provide the state's CERCLA section 104 assurances before a political
subdivision can take the lead for remedial action.
Support agency means the agency or agencies that provide the support
agency coordinator to furnish necessary data to the lead agency, review
response data and documents, and provide other assistance as requested
by the OSC or RPM. EPA, the USCG, another federal agency, or a state may
be support agencies for a response action if operating pursuant to a
contract executed under section 104(d)(1) of CERCLA or designated
pursuant to a Superfund Memorandum of Agreement entered into pursuant to
subpart F of the NCP or other agreement. The support agency may also
concur on decision documents.
Support agency coordinator (SAC) means the official designated by
the support agency, as appropriate, to interact and coordinate with the
lead agency in response actions under subpart E of this part.
Surface collecting agents means those chemical agents that form a
surface film to control the layer thickness of oil.
Surface washing agent is any product that removes oil from solid
surfaces, such as beaches and rocks, through a detergency mechanism and
does not involve dispersing or solubilizing the oil into the water
column.
Tank vessel as defined by section 1001 of the OPA means a vessel
that is constructed or adapted to carry, or that carries oil or
hazardous material in bulk as cargo or cargo residue, and that:
(1) is a vessel of the United States;
(2) operates on the navigable waters; or
(3) transfers oil or hazardous material in a place subject to the
jurisdiction of the United States.
Threat of discharge or release, see definitions for discharge and
release.
Threat of release, see definition for release.
Treatment technology means any unit operation or series of unit
operations
[[Page 22]]
that alters the composition of a hazardous substance or pollutant or
contaminant through chemical, biological, or physical means so as to
reduce toxicity, mobility, or volume of the contaminated materials being
treated. Treatment technologies are an alternative to land disposal of
hazardous wastes without treatment.
Trustee means an official of a federal natural resources management
agency designated in subpart G of the NCP or a designated state official
or Indian tribe or, in the case of discharges covered by the OPA, a
foreign government official, who may pursue claims for damages under
section 107(f) of CERCLA or section 1006 of the OPA.
United States when used in relation to section 311(a)(5) of the CWA,
means the states, the District of Columbia, the Commonwealth of Puerto
Rico, the Northern Mariana Islands, Guam, American Samoa, the United
States Virgin Islands, and the Pacific Island Governments. United
States, when used in relation to section 101(27) of CERCLA and section
1001(36) of the OPA, includes the several states of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, Guam,
American Samoa, the United States Virgin Islands, the Commonwealth of
the Northern Marianas, and any other territory or possession over which
the United States has jurisdiction.
Vessel as defined by section 101(28) of CERCLA, means every
description of watercraft or other artificial contrivance used, or
capable of being used, as a means of transportation on water; and, as
defined by section 311(a)(3) of the CWA, means every description of
watercraft or other artificial contrivance used, or capable of being
used, as a means of transportation on water other than a public vessel.
Volunteer means any individual accepted to perform services by the
lead agency which has authority to accept volunteer services (examples:
See 16 U.S.C. 742f(c)). A volunteer is subject to the provisions of the
authorizing statute and the NCP.
Worst case discharge as defined by section 311(a)(24) of the CWA,
means, in the case of a vessel, a discharge in adverse weather
conditions of its entire cargo, and, in the case of an offshore facility
or onshore facility, the largest foreseeable discharge in adverse
weather conditions.
59 FR 47416, Sept. 15, 1994, as amended at 60 FR 16054, Mar. 29, 1995;79
FR 65592, Nov. 5, 2014; 80 FR 37119, June 29, 2015; 83 FR 5209, Feb. 6,
2018]
Sec. 300.6 Use of number and gender.
As used in this regulation, words in the singular also include the
plural and words in the masculine gender also include the feminine and
vice versa, as the case may require.
Sec. 300.7 Computation of time.
In computing any period of time prescribed or allowed in these rules
of practice, except as otherwise provided, the day of the event from
which the designated period begins to run shall not be included.
Saturdays, Sundays, and federal legal holidays shall be included. When a
stated time expires on a Saturday, Sunday, or legal holiday, the stated
time period shall be extended to include the next business day.
Subpart B_Responsibility and Organization for Response
Source: 59 FR 47424, Sept. 15, 1994, unless otherwise noted.
Sec. 300.100 Duties of President delegated to federal agencies.
In Executive Orders 12580 and 12777, the President delegated certain
functions and responsibilities vested in him by the CWA, CERCLA, and the
OPA.
Sec. 300.105 General organization concepts.
(a) Federal agencies should:
(1) Plan for emergencies and develop procedures for addressing oil
discharges and releases of hazardous substances, pollutants, or
contaminants;
(2) Coordinate their planning, preparedness, and response activities
with one another;
(3) Coordinate their planning, preparedness, and response activities
with affected states, local governments, and private entities; and
[[Page 23]]
(4) Make available those facilities or resources that may be useful
in a response situation, consistent with agency authorities and
capabilities.
(b) Three fundamental kinds of activities are performed pursuant to
the NCP:
(1) Preparedness planning and coordination for response to a
discharge of oil or release of a hazardous substance, pollutant, or
contaminant;
(2) Notification and communications; and
(3) Response operations at the scene of a discharge or release.
(c) The organizational elements created to perform these activities
are:
(1) The NRT, responsible for national response and preparedness
planning, for coordinating regional planning, and for providing policy
guidance and support to the Regional Response Teams (RRTs). NRT
membership consists of representatives from the agencies specified in
Sec. 300.175(b).
(2) RRTs, responsible for regional planning and preparedness
activities before response actions, and for providing advice and support
to the OSC or RPM when activated during a response. RRT membership
consists of designated representatives from each federal agency
participating in the NRT together with state and (as agreed upon by the
states) local government representatives.
(3) The OSC and the RPM, primarily responsible for directing
response efforts and coordinating all other efforts at the scene of a
discharge or release. The other responsibilities of OSCs and RPMs are
described in Sec. 300.135.
(4) Area Committees, responsible for developing, under direction of
the OSC, ACPs for each area designated by the President.
Responsibilities of Area Committees are described in Sec. 300.205(c).
(d) The basic framework for the response management structure is a
system (e.g., a unified command system) that brings together the
functions of the Federal Government, the state government, and the
responsible party to achieve an effective and efficient response, where
the OSC maintains authority.
(e)(1) The organizational concepts of the national response system
are depicted in the following Figures 1a and 1b:
[[Page 24]]
[GRAPHIC] [TIFF OMITTED] TC02AU92.000
[[Page 25]]
[GRAPHIC] [TIFF OMITTED] TC02AU92.001
[[Page 26]]
(2) The standard federal regional boundaries (which are also the
geographic areas of responsibility for the RRTs) are shown in the
following Figure 2:
[GRAPHIC] [TIFF OMITTED] TC02AU92.002
[[Page 27]]
(3) The USCG District boundaries are shown in the following Figure
3:
[GRAPHIC] [TIFF OMITTED] TR08JN07.004
[59 FR 47424, Sept. 15, 1994, as amended at 72 FR 31753, June 8, 2007]
Sec. 300.110 National Response Team.
National planning and coordination is accomplished through the NRT.
[[Page 28]]
(a) The NRT consists of representatives from the agencies named in
Sec. 300.175(b). Each agency shall designate a member to the team and
sufficient alternates to ensure representation, as agency resources
permit. The NRT will consider requests for membership on the NRT from
other agencies. Other agencies may request membership by forwarding such
requests to the chair of the NRT.
(b) The chair of the NRT shall be the representative of EPA and the
vice chair shall be the representative of the USCG, with the exception
of periods of activation because of response action. During activation,
the chair shall be the member agency providing the OSC/RPM. The vice
chair shall maintain records of NRT activities along with national,
regional, and area plans for response actions.
(c) While the NRT desires to achieve a consensus on all matters
brought before it, certain matters may prove unresolvable by this means.
In such cases, each agency serving as a participating agency on the NRT
may be accorded one vote in NRT proceedings.
(d) The NRT may establish such bylaws and committees as it deems
appropriate to further the purposes for which it is established.
(e) The NRT shall evaluate methods of responding to discharges or
releases; shall recommend any changes needed in the response
organization; and shall recommend to the Administrator of EPA changes to
the NCP designed to improve the effectiveness of the national response
system, including drafting of regulatory language.
(f) The NRT shall provide policy and program direction to the RRTs.
(g) The NRT may consider and make recommendations to appropriate
agencies on the training, equipping, and protection of response teams
and necessary research, development, demonstration, and evaluation to
improve response capabilities.
(h) Direct planning and preparedness responsibilities of the NRT
include:
(1) Maintaining national preparedness to respond to a major
discharge of oil or release of a hazardous substance, pollutant, or
contaminant that is beyond regional capabilities;
(2) Publishing guidance documents for preparation and implementation
of SARA Title III local emergency response plans;
(3) Monitoring incoming reports from all RRTs and activating for a
response action, when necessary;
(4) Coordinating a national program to assist member agencies in
preparedness planning and response, and enhancing coordination of member
agency preparedness programs;
(5) Developing procedures, in coordination with the NSFCC, as
appropriate, to ensure the coordination of federal, state, and local
governments, and private response to oil discharges and releases of
hazardous substances, pollutants, or contaminants;
(6) Monitoring response-related research and development, testing,
and evaluation activities of NRT agencies to enhance coordination, avoid
duplication of effort, and facilitate research in support of response
activities;
(7) Developing recommendations for response training and for
enhancing the coordination of available resources among agencies with
training responsibilities under the NCP;
(8) Reviewing regional responses to oil discharges and hazardous
substance, pollutant, or contaminant releases, including an evaluation
of equipment readiness and coordination among responsible public
agencies and private organizations; and
(9) Assisting in developing a national exercise program, in
coordination with the NSFCC, to ensure preparedness and coordination
nationwide.
(i) The NRT will consider matters referred to it for advice or
resolution by an RRT.
(j) The NRT should be activated as an emergency response team:
(1) When an oil discharge or hazardous substance release:
(i) Exceeds the response capability of the region in which it
occurs;
(ii) Transects regional boundaries; or
(iii) Involves a substantial threat to the public health or welfare
of the United States or the environment, substantial amounts of
property, or substantial threats to natural resources;
(2) If requested by any NRT member.
[[Page 29]]
(k) When activated for a response action, the NRT shall meet at the
call of the chair and may:
(1) Monitor and evaluate reports from the OSC/RPM and recommend to
the OSC/RPM, through the RRT, actions to combat the discharge or
release;
(2) Request other federal, state, and local governments, or private
agencies, to provide resources under their existing authorities to
combat a discharge or release, or to monitor response operations; and
(3) Coordinate the supply of equipment, personnel, or technical
advice to the affected region from other regions or districts.
Sec. 300.115 Regional Response Teams.
(a) Regional planning and coordination of preparedness and response
actions is accomplished through the RRT. In the case of a discharge of
oil, preparedness activities will be carried out in conjunction with
Area Committees, as appropriate. The RRT agency membership parallels
that of the NRT, as described in Sec. 300.110, but also includes state
and local representation. The RRT provides:
(1) The appropriate regional mechanism for development and
coordination of preparedness activities before a response action is
taken and for coordination of assistance and advice to the OSC/RPM
during such response actions; and
(2) Guidance to Area Committees, as appropriate, to ensure inter-
area consistency and consistency of individual ACPs with the RCP and
NCP.
(b) The two principal components of the RRT mechanism are a standing
team, which consists of designated representatives from each
participating federal agency, state governments, and local governments
(as agreed upon by the states); and incident-specific teams formed from
the standing team when the RRT is activated for a response. On incident-
specific teams, participation by the RRT member agencies will relate to
the technical nature of the incident and its geographic location.
(1) The standing team's jurisdiction corresponds to the standard
federal regions, except for Alaska, Oceania in the Pacific, and the
Caribbean area, each of which has a separate standing RRT. The role of
the standing RRT includes communications systems and procedures,
planning, coordination, training, evaluation, preparedness, and related
matters on a regionwide basis. It also includes coordination of Area
Committees for these functions in areas within their respective regions,
as appropriate.
(2) The role of the incident-specific team is determined by the
operational requirements of the response to a specific discharge or
release. Appropriate levels of activation and/or notification of the
incident-specific RRT, including participation by state and local
governments, shall be determined by the designated RRT chair for the
incident, based on the RCP. The incident-specific RRT supports the
designated OSC/RPM. The designated OSC/RPM directs response efforts and
coordinates all other efforts at the scene of a discharge or release.
(c) The representatives of EPA and the USCG shall act as co-chairs
of RRTs except when the RRT is activated. When the RRT is activated for
response actions, the chair shall be the member agency providing the
OSC/RPM.
(d) Each participating agency should designate one member and at
least one alternate member to the RRT. Agencies whose regional
subdivisions do not correspond to the standard federal regions may
designate additional representatives to the standing RRT to ensure
appropriate coverage of the standard federal region. Participating
states may also designate one member and at least one alternate member
to the RRT. Indian tribal governments may arrange for representation
with the RRT appropriate to their geographical location. All agencies
and states may also provide additional representatives as observers to
meetings of the RRT.
(e) RRT members should designate representatives and alternates from
their agencies as resource personnel for RRT activities, including RRT
work planning, and membership on incident-specific teams in support of
the OSCs/RPMs.
(f) Federal RRT members or their representatives should provide
OSCs/
[[Page 30]]
RPMs with assistance from their respective federal agencies commensurate
with agency responsibilities, resources, and capabilities within the
region. During a response action, the members of the RRT should seek to
make available the resources of their agencies to the OSC/RPM as
specified in the RCP and ACP.
(g) RRT members should nominate appropriately qualified
representatives from their agencies to work with OSCs in developing and
maintaining ACPs.
(h) Affected states are encouraged to participate actively in all
RRT activities. Each state governor is requested to assign an office or
agency to represent the state on the appropriate RRT; to designate
representatives to work with the RRT in developing RCPs; to plan for,
make available, and coordinate state resources; and to serve as the
contact point for coordination of response with local government
agencies, whether or not represented on the RRT. The state's RRT
representative should keep the State Emergency Response Commission
(SERC), described in Sec. 300.205(d), apprised of RRT activities and
coordinate RRT activities with the SERC. Local governments are invited
to participate in activities on the appropriate RRT as provided by state
law or as arranged by the state's representative. Indian tribes are also
invited to participate in such activities.
(i) The standing RRT shall recommend changes in the regional
response organization as needed, revise the RCP as needed, evaluate the
preparedness of the participating agencies and the effectiveness of ACPs
for the federal response to discharges and releases, and provide
technical assistance for preparedness to the response community. The RRT
should:
(1) Review and comment, to the extent practicable, on local
emergency response plans or other issues related to the preparation,
implementation, or exercise of such plans upon request of a local
emergency planning committee;
(2) Evaluate regional and local responses to discharges or releases
on a continuing basis, considering available legal remedies, equipment
readiness, and coordination among responsible public agencies and
private organizations, and recommend improvements;
(3) Recommend revisions of the NCP to the NRT, based on observations
of response operations;
(4) Review OSC actions to ensure that RCPs and ACPs are effective;
(5) Encourage the state and local response community to improve its
preparedness for response;
(6) In coordination with Area Committees and in accordance with any
applicable laws, regulations, or requirements, conduct advance planning
for use of dispersants, surface washing agents, surface collecting
agents, burning agents, bioremediation agents, or other chemical agents
in accordance with subpart J of this part;
(7) Be prepared to provide response resources to major discharges or
releases outside the region;
(8) Conduct or participate in training and exercises as necessary to
encourage preparedness activities of the response community within the
region;
(9) Meet at least semiannually to review response actions carried
out during the preceding period, consider changes in RCPs, and recommend
changes in ACPs;
(10) Provide letter reports on RRT activities to the NRT twice a
year, no later than January 31 and July 31. At a minimum, reports should
summarize recent activities, organizational changes, operational
concerns, and efforts to improve state and local coordination; and
(11) Ensure maximum participation in the national exercise program
for announced and unannounced exercises.
(j)(1) The RRT may be activated by the chair as an incident-specific
response team when a discharge or release:
(i) Exceeds the response capability available to the OSC/RPM in the
place where it occurs;
(ii) Transects state boundaries;
(iii) May pose a substantial threat to the public health or welfare
of the United States or the environment, or to regionally significant
amounts of property; or
(iv) Is a worst case discharge, as described in Sec. 300.324. RCPs
shall specify detailed criteria for activation of RRTs.
[[Page 31]]
(2) The RRT will be activated during any discharge or release upon a
request from the OSC/RPM, or from any RRT representative, to the chair
of the RRT. Requests for RRT activation shall later be confirmed in
writing. Each representative, or an appropriate alternate, should be
notified immediately when the RRT is activated.
(3) During prolonged removal or remedial action, the RRT may not
need to be activated or may need to be activated only in a limited
sense, or may need to have available only those member agencies of the
RRT who are directly affected or who can provide direct response
assistance.
(4) When the RRT is activated for a discharge or release, agency
representatives shall meet at the call of the chair and may:
(i) Monitor and evaluate reports from the OSC/RPM, advise the OSC/
RPM on the duration and extent of response, and recommend to the OSC/RPM
specific actions to respond to the discharge or release;
(ii) Request other federal, state, or local governments, or private
agencies, to provide resources under their existing authorities to
respond to a discharge or release or to monitor response operations;
(iii) Help the OSC/RPM prepare information releases for the public
and for communication with the NRT;
(iv) If the circumstances warrant, make recommendations to the
regional or district head of the agency providing the OSC/RPM that a
different OSC/RPM should be designated; and
(v) Submit pollution reports to the NRC as significant developments
occur.
(5) At the regional level, a Regional Response Center (RRC) may
provide facilities and personnel for communications, information
storage, and other requirements for coordinating response. The location
of each RRC should be provided in the RCP.
(6) When the RRT is activated, affected states may participate in
all RRT deliberations. State government representatives participating in
the RRT have the same status as any federal member of the RRT.
(7) The RRT can be deactivated when the incident-specific RRT chair
determines that the OSC/RPM no longer requires RRT assistance.
(8) Notification of the RRT may be appropriate when full activation
is not necessary, with systematic communication of pollution reports or
other means to keep RRT members informed as to actions of potential
concern to a particular agency, or to assist in later RRT evaluation of
regionwide response effectiveness.
(k) Whenever there is insufficient national policy guidance on a
matter before the RRT, a technical matter requiring solution, a question
concerning interpretation of the NCP, or a disagreement on discretionary
actions among RRT members that cannot be resolved at the regional level,
it may be referred to the NRT, described in Sec. 300.110, for advice.
Sec. 300.120 On-scene coordinators and remedial project managers:
general responsibilities.
(a) The OSC/RPM directs response efforts and coordinates all other
efforts at the scene of a discharge or release. As part of the planning
and preparedness for response, OSCs shall be predesignated by the
regional or district head of the lead agency. EPA and the USCG shall
predesignate OSCs for all areas in each region, except as provided in
paragraphs (c) and (d) of this section. RPMs shall be assigned by the
lead agency to manage remedial or other response actions at NPL sites,
except as provided in paragraphs (c) and (d) of this section.
(1) The USCG shall provide OSCs for oil discharges, including
discharges from facilities and vessels under the jurisdiction of another
federal agency, within or threatening the coastal zone. The USCG shall
also provide OSCs for the removal of releases of hazardous substances,
pollutants, or contaminants into or threatening the coastal zone, except
as provided in paragraph (b) of this section. The USCG shall not provide
predesignated OSCs for discharges or releases from hazardous waste
management facilities or in similarly chronic incidents. The USCG shall
provide an initial response to discharges or releases from hazardous
waste management facilities within
[[Page 32]]
the coastal zone in accordance with Department of Transportation (DOT)/
EPA Instrument of Redelegation (May 27, 1988) except as provided by
paragraph (b) of this section. The USCG OSC shall contact the cognizant
RPM as soon as it is evident that a removal may require a follow-up
remedial action, to ensure that the required planning can be initiated
and an orderly transition to an EPA or state lead can occur.
(2) EPA shall provide OSCs for discharges or releases into or
threatening the inland zone and shall provide RPMs for federally funded
remedial actions, except in the case of state-lead federally funded
response and as provided in paragraph (b) of this section. EPA will also
assume all remedial actions at NPL sites in the coastal zone, even where
removals are initiated by the USCG, except as provided in paragraph (b)
of this section.
(b) In general, USCG Captains of the Port (COTP) shall serve as the
designated OSCs for areas in the coastal zone for which an ACP is
required under CWA section 311(j) and EPA Regional Administrators shall
designate OSCs for areas in the inland zone for which an ACP is required
under CWA section 311(j).
(c) For releases of hazardous substances, pollutants, or
contaminants, when the release is on, or the sole source of the release
is from, any facility or vessel, including vessels bareboat-chartered
and operated, under the jurisdiction, custody, or control of DOD, DOE,
or other federal agency:
(1) In the case of DOD or DOE, DOD or DOE shall provide OSCs/RPMs
responsible for taking all response actions; and
(2) In the case of a federal agency other than EPA, DOD, or DOE,
such agency shall provide OSCs for all removal actions that are not
emergencies and shall provide RPMs for all remedial actions.
(d) DOD will be the removal response authority with respect to
incidents involving DOD military weapons and munitions or weapons and
munitions under the jurisdiction, custody, or control of DOD.
(e) The OSC is responsible for overseeing development of the ACP in
the area of the OSC's responsibility. ACPs shall, as appropriate, be
accomplished in cooperation with the RRT, and designated state and local
representatives. In contingency planning and removal, the OSC
coordinates, directs, and reviews the work of other agencies, Area
Committees, responsible parties, and contractors to assure compliance
with the NCP, decision document, consent decree, administrative order,
and lead agency-approved plans applicable to the response.
(f) The RPM is the prime contact for remedial or other response
actions being taken (or needed) at sites on the proposed or promulgated
NPL, and for sites not on the NPL but under the jurisdiction, custody,
or control of a federal agency. The RPM's responsibilities include:
(1) Fund-financed response: The RPM coordinates, directs, and
reviews the work of EPA, states and local governments, the U.S. Army
Corps of Engineers, and all other agencies and contractors to assure
compliance with the NCP. Based upon the reports of these parties, the
RPM recommends action for decisions by lead agency officials. The RPM's
period of responsibility begins prior to initiation of the remedial
investigation/feasibility study (RI/FS), described in Sec. 300.430, and
continues through design, remedial action, deletion of the site from the
NPL, and the CERCLA cost recovery activity. When a removal and remedial
action occur at the same site, the OSC and RPM should coordinate to
ensure an orderly transition of responsibility.
(2) Federal-lead non-Fund-financed response: The RPM coordinates,
directs, and reviews the work of other agencies, responsible parties,
and contractors to assure compliance with the NCP, Record of Decision
(ROD), consent decree, administrative order, and lead agency-approved
plans applicable to the response. Based upon the reports of these
parties, the RPM shall recommend action for decisions by lead agency
officials. The RPM's period of responsibility begins prior to initiation
of the RI/FS, described in Sec. 300.430, and continues through design
and remedial action and the CERCLA cost recovery activity. The OSC and
RPM shall ensure orderly transition of responsibilities from one to the
other.
[[Page 33]]
(3) The RPM shall participate in all decision-making processes
necessary to ensure compliance with the NCP, including, as appropriate,
agreements between EPA or other federal agencies and the state. The RPM
may also review responses where EPA has preauthorized a person to file a
claim for reimbursement to determine that the response was consistent
with the terms of such preauthorization in cases where claims are filed
for reimbursement.
(g)(1) Where a support agency has been identified through a
cooperative agreement, Superfund Memorandum of Agreement (SMOA), or
other agreement, that agency may designate a support agency coordinator
(SAC) to provide assistance, as requested, by the OSC/RPM. The SAC is
the prime representative of the support agency for response actions.
(2) The SAC's responsibilities may include:
(i) Providing and reviewing data and documents as requested by the
OSC/RPM during the planning, design, and cleanup activities of the
response action; and
(ii) Providing other assistance as requested.
(h)(1) The lead agency should provide appropriate training for its
OSCs, RPMs, and other response personnel to carry out their
responsibilities under the NCP.
(2) OSCs/RPMs should ensure that persons designated to act as their
on-scene representatives are adequately trained and prepared to carry
out actions under the NCP, to the extent practicable.
Sec. 300.125 Notification and communications.
(a) The National Response Center (NRC), located at USCG
Headquarters, is the national communications center, continuously manned
for handling activities related to response actions. The NRC acts as the
single point of contact for all pollution incident reporting, and as the
NRT communications center. Notice of discharges and releases must be
made telephonically through a toll free number or a special local number
(Telecommunication Device for the Deaf (TDD) and collect calls
accepted). (Notification details appear in Sec. Sec. 300.300 and
300.405.) The NRC receives and immediately relays telephone notices of
discharges or releases to the appropriate predesignated federal OSC. The
telephone report is distributed to any interested NRT member agency or
federal entity that has established a written agreement or understanding
with the NRC. The NRC evaluates incoming information and immediately
advises FEMA of a potential major disaster situation.
(b) The Commandant, USCG, in conjunction with other NRT agencies,
shall provide the necessary personnel, communications, plotting
facilities, and equipment for the NRC.
(c) Notice of an oil discharge or release of a hazardous substance
in an amount equal to or greater than the reportable quantity must be
made immediately in accordance with 33 CFR part 153, subpart B, and 40
CFR part 302, respectively. Notification shall be made to the NRC Duty
Officer, HQ USCG, Washington, DC, telephone (800) 424-8802 or (202) 267-
2675. All notices of discharges or releases received at the NRC will be
relayed immediately by telephone to the OSC.
Sec. 300.130 Determinations to initiate response and special conditions.
(a) In accordance with CWA and CERCLA, the Administrator of EPA or
the Secretary of the department in which the USCG is operating, as
appropriate, is authorized to act for the United States to take response
measures deemed necessary to protect the public health or welfare or
environment from discharges of oil or releases of hazardous substances,
pollutants, or contaminants except with respect to such releases on or
from vessels or facilities under the jurisdiction, custody, or control
of other federal agencies.
(b) The Administrator of EPA or the Secretary of the department in
which the USCG is operating, as appropriate, is authorized to initiate
and, in the case of a discharge posing a substantial threat to public
health or welfare of the United States is required to initiate and
direct, appropriate response activities when the Administrator or
Secretary determines that any oil or CWA hazardous substance is
discharged
[[Page 34]]
or there is a substantial threat of such discharge from any vessel or
offshore or onshore facility into or on the navigable waters of the
United States, on the adjoining shorelines to the navigable waters, into
or on the waters of the exclusive economic zone, or that may affect
natural resources belonging to, appertaining to, or under exclusive
management authority of the United States; or
(c) The Administrator of EPA or the Secretary of the department in
which the USCG is operating, as appropriate, is authorized to initiate
appropriate response activities when the Administrator or Secretary
determines that any hazardous substance is released or there is a threat
of such a release into the environment, or there is a release or threat
of release into the environment of any pollutant or contaminant which
may present an imminent and substantial danger to the public health or
welfare of the United States.
(d) In addition to any actions taken by a state or local government,
the Administrator of EPA or the Secretary of the department in which the
USCG is operating may request the U.S. Attorney General to secure the
relief from any person, including the owner or operator of the vessel or
facility necessary to abate a threat or, after notice to the affected
state, take any other action authorized by section 311 of the CWA or
section 106 of CERCLA as appropriate, including issuing administrative
orders, that may be necessary to protect the public health or welfare,
if the Administrator or Secretary determines:
(1) That there may be an imminent and substantial threat to the
public health or welfare of the United States or the environment of the
United States, including fish, shellfish, and wildlife, public and
private property, shorelines, beaches, habitats, and other living and
nonliving natural resources under the jurisdiction or control of the
United States, because of an actual or threatened discharge of oil or a
CWA hazardous substance from any vessel or offshore or onshore facility
into or upon the navigable waters of the United States; or
(2) That there may be an imminent and substantial endangerment to
the public health or welfare of the United States or the environment
because of a release of a CERCLA hazardous substance from a facility.
(e) Response actions to remove discharges originating from
operations conducted subject to the Outer Continental Shelf Lands Act
shall be in accordance with the NCP.
(f) Where appropriate, when a discharge or release involves
radioactive materials, the lead or support federal agency shall act
consistent with the notification and assistance procedures described in
the appropriate Federal Radiological Plan. For the purpose of the NCP,
the FRERP (24 CFR part 2401) is the appropriate plan. Most radiological
discharges and releases do not result in FRERP activation and should be
handled in accordance with the NCP. However, releases from nuclear
incidents subject to requirements for financial protection established
by the Nuclear Regulatory Commission under the Price-Anderson amendments
(section 170) of the Atomic Energy Act are specifically excluded from
CERCLA and NCP requirements.
(g) Removal actions involving nuclear weapons should be conducted in
accordance with the joint Department of Defense, Department of Energy,
and FEMA Agreement for Response to Nuclear Incidents and Nuclear Weapons
Significant Incidents (January 8, 1981).
(h) If the situation is beyond the capability of state and local
governments and the statutory authority of federal agencies, the
President may, under the Disaster Relief Act of 1974, act upon a request
by the governor and declare a major disaster or emergency and appoint a
Federal Coordinating Officer (FCO) to coordinate all federal disaster
assistance activities. In such cases, the OSC/RPM would continue to
carry out OSC/RPM responsibilities under the NCP, but would coordinate
those activities with the FCO to ensure consistency with other federal
disaster assistance activities.
(i) In the event of a declaration of a major disaster by the
President, the FEMA may activate the Federal Response Plan (FRP). A FCO,
designated by the President, may implement the FRP and coordinate and
direct emergency assistance and disaster relief of
[[Page 35]]
impacted individuals, business, and public services under the Robert T.
Stafford Disaster Relief Act. Delivery of federal assistance is
facilitated through twelve functional annexes to the FRP known as
Emergency Support Functions (ESFs). EPA coordinates activities under ESF
10--Hazardous Materials, which addresses preparedness and response to
hazardous materials and oil incidents caused by a natural disaster or
other catastrophic event. In such cases, the OSC/RPM should coordinate
response activities with the FCO, through the incident-specific ESF 10
Chair, to ensure consistency with federal disaster assistance
activities.
Sec. 300.135 Response operations.
(a) The OSC/RPM, consistent with Sec. Sec. 300.120 and 300.125,
shall direct response efforts and coordinate all other efforts at the
scene of a discharge or release. As part of the planning and preparation
for response, the OSCs/RPMs shall be predesignated by the regional or
district head of the lead agency.
(b) The first federal official affiliated with an NRT member agency
to arrive at the scene of a discharge or release should coordinate
activities under the NCP and is authorized to initiate, in consultation
with the OSC, any necessary actions normally carried out by the OSC
until the arrival of the predesignated OSC. This official may initiate
federal fund-financed actions only as authorized by the OSC or, if the
OSC is unavailable, the authorized representative of the lead agency.
(c) The OSC/RPM shall, to the extent practicable, collect pertinent
facts about the discharge or release, such as its source and cause; the
identification of potentially responsible parties; the nature, amount,
and location of discharged or released materials; the probable direction
and time of travel of discharged or released materials; whether the
discharge is a worst case discharge as discussed in Sec. 300.324; the
pathways to human and environmental exposure; the potential impact on
human health, welfare, and safety and the environment; whether the
discharge or release poses a substantial threat to the public health or
welfare of the United States as discussed in Sec. 300.322; the
potential impact on natural resources and property which may be
affected; priorities for protecting human health and welfare and the
environment; and appropriate cost documentation.
(d) The OSC's/RPM's efforts shall be coordinated with other
appropriate federal, state, local, and private response agencies. OSCs/
RPMs may designate capable persons from federal, state, or local
agencies to act as their on-scene representatives. State and local
governments, however, are not authorized to take actions under subparts
D and E of the NCP that involve expenditures of the Oil Spill Liability
Trust Fund or CERCLA funds unless an appropriate contract or cooperative
agreement has been established. The basic framework for the response
management structure is a system (e.g., a unified command system), that
brings together the functions of the federal government, the state
government, and the responsible party to achieve an effective and
efficient response, where the OSC maintains authority.
(e) The OSC/RPM should consult regularly with the RRT and NSFCC, as
appropriate, in carrying out the NCP and keep the RRT and NSFCC, as
appropriate, informed of activities under the NCP.
(f) The OSC/RPM shall advise the support agency as promptly as
possible of reported releases.
(g) The OSC/RPM should evaluate incoming information and immediately
advise FEMA of potential major disaster situations.
(h) In those instances where a possible public health emergency
exists, the OSC/RPM should notify the Department of Health and Human
Services (HHS) representative to the RRT. Throughout response actions,
the OSC/RPM may call upon the HHS representative for assistance in
determining public health threats and call upon the Occupational Safety
and Health Administration (OSHA) and HHS for assistance on worker health
and safety issues.
(i) All federal agencies should plan for emergencies and develop
procedures for dealing with oil discharges and releases of hazardous
substances, pollutants, or contaminants from vessels and
[[Page 36]]
facilities under their jurisdiction. All federal agencies, therefore,
are responsible for designating the office that coordinates response to
such incidents in accordance with the NCP and applicable federal
regulations and guidelines.
(j)(1) The OSC/RPM shall ensure that the trustees for natural
resources are promptly notified of discharges or releases.
(2) The OSC or RPM shall coordinate all response activities with the
affected natural resource trustees and, for discharges of oil, the OSC
shall consult with the affected trustees on the appropriate removal
action to be taken.
(k) Where the OSC/RPM becomes aware that a discharge or release may
affect any endangered or threatened species or their habitat, the OSC/
RPM shall consult with the Department of Interior (DOI), or the
Department of Commerce (DOC) (NOAA) and, if appropriate, the cognizant
federal land managing agency.
(l) The OSC/RPM is responsible for addressing worker health and
safety concerns at a response scene, in accordance with Sec. 300.150.
(m) The OSC shall submit pollution reports to the RRT and other
appropriate agencies as significant developments occur during response
actions, through communications networks or procedures agreed to by the
RRT and covered in the RCP.
(n) OSCs/RPMs should ensure that all appropriate public and private
interests are kept informed and that their concerns are considered
throughout a response, to the extent practicable, consistent with the
requirements of Sec. 300.155 of this part.
Sec. 300.140 Multi-regional responses.
(a) If a discharge or release moves from the area covered by one ACP
or RCP into another area, the authority for response actions should
likewise shift. If a discharge or release affects areas covered by two
or more ACPs or RCPs, the response mechanisms of each applicable plan
may be activated. In this case, response actions of all regions
concerned shall be fully coordinated as detailed in the RCPs and ACPs.
(b) There shall be only one OSC and/or RPM at any time during the
course of a response operation. Should a discharge or release affect two
or more areas, EPA, the USCG, DOD, DOE, or other lead agency, as
appropriate, shall give prime consideration to the area vulnerable to
the greatest threat, in determining which agency should provide the OSC
and/or RPM. The RRT shall designate the OSC and/or RPM if the RRT member
agencies who have response authority within the affected areas are
unable to agree on the designation. The NRT shall designate the OSC and/
or RPM if members of one RRT or two adjacent RRTs are unable to agree on
the designation.
(c) Where the USCG has initially provided the OSC for response to a
release from hazardous waste management facilities located in the
coastal zone, responsibility for response action shall shift to EPA or
another federal agency, as appropriate.
Sec. 300.145 Special teams and other assistance available to OSCs/RPMs.
(a) The NSF is a special team established by the USCG, including the
three USCG Strike Teams, the Public Information Assist Team (PIAT), and
the NSFCC. The NSF is available to assist OSCs/RPMs in their
preparedness and response duties.
(1) The three Strike Teams (Atlantic, Gulf, and Pacific) provide
trained personnel and specialized equipment to assist the OSC in
training for spill response, stabilizing and containing the spill, and
in monitoring or directing the response actions of the responsible
parties and/or contractors. The OSC has a specific team designated for
initial contact and may contact that team directly for any assistance.
(2) The NSFCC can provide the following support to the OSC:
(i) Technical assistance, equipment and other resources to augment
the OSC staff during spill response.
(ii) Assistance in coordinating the use of private and public
resources in support of the OSC during a response to or a threat of a
worst case discharge of oil.
(iii) Review of the area contingency plan, including an evaluation
of equipment readiness and coordination among responsible public
agencies and private organizations.
[[Page 37]]
(iv) Assistance in locating spill response resources for both
response and planning, using the NSFCC's national and international
computerized inventory of spill response resources.
(v) Coordination and evaluation of pollution response exercises.
(vi) Inspection of district prepositioned pollution response
equipment.
(3) PIAT is an element of the NSFCC staff which is available to
assist OSCs to meet the demands for public information during a response
or exercise. Its use is encouraged any time the OSC requires outside
public affairs support. Requests for PIAT assistance may be made through
the NSFCC or NRC.
(b)(1) The Environmental Response Team (ERT) is established by EPA
in accordance with its disaster and emergency responsibilities. The ERT
has expertise in treatment technology, biology, chemistry, hydrology,
geology, and engineering.
(2) The ERT can provide access to special decontamination equipment
for chemical releases and advice to the OSC/RPM in hazard evaluation;
risk assessment; multimedia sampling and analysis program; on-site
safety, including development and implementation plans; cleanup
techniques and priorities; water supply decontamination and protection;
application of dispersants; environmental assessment; degree of cleanup
required; and disposal of contaminated material.
(3) The ERT also provides both introductory and intermediate level
training courses to prepare response personnel.
(4) OSC/RPM or RRT requests for ERT support should be made to the
EPA representative on the RRT; EPA Headquarters, Director, Emergency
Response Division; or the appropriate EPA regional emergency
coordinator.
(c) Scientific Support Coordinators (SSCs) may be designated by the
OSC (and RPM in the case of EPA SSCs) as the principal advisors for
scientific issues, communication with the scientific community, and
coordination of requests for assistance from state and federal agencies
regarding scientific studies. The SSC strives for a consensus on
scientific issues affecting the response, but ensures that differing
opinions within the community are communicated to the OSC/RPM.
(1) Generally, SSCs are provided by NOAA in the coastal zones, and
by EPA in the inland zone. OSC/RPM requests for SSC support can be made
directly to the SSC assigned to the area or to the agency member of the
RRT. NOAA SSCs can also be requested through NOAA's SSC program office
in Seattle, WA. NOAA SSCs are assigned to USCG Districts and are
supported by a scientific support team that includes expertise in
environmental chemistry, oil slick tracking, pollutant transport
modeling, natural resources at risk, environmental tradeoffs of
countermeasures and cleanup, and information management.
(2) During a response, the SSC serves on the federal OSC's/RPM's
staff and may, at the request of the OSC/RPM, lead the scientific team
and be responsible for providing scientific support for operational
decisions and for coordinating on-scene scientific activity. Depending
on the nature and location of the incident, the SSC integrates expertise
from governmental agencies, universities, community representatives, and
industry to assist the OSC/RPM in evaluating the hazards and potential
effects of releases and in developing response strategies.
(3) At the request of the OSC, the SSC may facilitate the OSC's work
with the lead administrative trustee for natural resources to ensure
coordination between damage assessment data collection efforts and data
collected in support of response operations.
(4) SSCs support the Regional Response Teams and the Area Committees
in preparing regional and area contingency plans and in conducting spill
training and exercises. For area plans, the SSC provides leadership for
the synthesis and integration of environmental information required for
spill response decisions in support of the OSC.
(d)(1) SUPSALV has an extensive salvage/search and recovery
equipment inventory with the requisite knowledge and expertise to
support these operations, including specialized salvage, firefighting,
and petroleum, oil and lubricants offloading capability.
[[Page 38]]
(2) When possible, SUPSALV will provide equipment for training
exercises in support of national and regional contingency planning
objectives.
(3) The OSC/RPM may request assistance directly from SUPSALV. Formal
requests are routed through the Chief of Naval Operations (N312).
(e) For marine salvage operations, OSCs/RPMs with responsibility for
monitoring, evaluating, or supervising these activities should request
technical assistance from DOD, the Strike Teams, or commercial salvors
as necessary to ensure that proper actions are taken. Marine salvage
operations generally fall into five categories: afloat salvage; offshore
salvage; river and harbor clearance; cargo salvage; and rescue towing.
Each category requires different knowledge and specialized types of
equipment. The complexity of such operations may be further compounded
by local environmental and geographic conditions. The nature of marine
salvage and the conditions under which it occurs combine to make such
operations imprecise, difficult, hazardous, and expensive. Thus,
responsible parties or other persons attempting to perform such
operations without adequate knowledge, equipment, and experience could
aggravate, rather than relieve, the situation.
(f) Radiological Emergency Response Teams (RERTs) have been
established by EPA's Office of Radiation Programs (ORP) to provide
response and support for incidents or sites containing radiological
hazards. Expertise is available in radiation monitoring, radionuclide
analysis, radiation health physics, and risk assessment. RERTs can
provide on-site support including mobile monitoring laboratories for
field analyses of samples and fixed laboratories for radiochemical
sampling and analyses. Requests for support may be made 24 hours a day
via the NRC or directly to the EPA Radiological Response Coordinator in
the Office of Radiation Programs. Assistance is also available from DOE
and other federal agencies.
(g)(1) DRGs assist the OSC by providing technical assistance,
personnel, and equipment, including pre-positioned equipment. Each DRG
consists of all Coast Guard personnel and equipment, including marine
firefighting equipment, in its district, additional pre-positioned
equipment, and a District Response Advisory Team (DRAT) that is
available to provide support to the OSC in the event that a spill
exceeds local response capabilities. Each DRG:
(i) Shall provide technical assistance, equipment, and other
resources, as available, when requested by an OSC through the USCG
representative to the RRT;
(ii) Shall ensure maintenance of all USCG response equipment within
its district;
(iii) May provide technical assistance in the preparation of the
ACP; and
(iv) Shall review each of those plans that affect its area of
geographic responsibility.
(2) In deciding where to locate personnel and pre-positioned
equipment, the USCG shall give priority emphasis to:
(i) The availability of facilities for loading and unloading heavy
or bulky equipment by barge;
(ii) The proximity to an airport capable of supporting large
military transport aircraft;
(iii) The flight time to provide response to oil spills in all areas
of the Coast Guard district with the potential for marine casualties;
(iv) The availability of trained local personnel capable of
responding in an oil spill emergency; and
(v) Areas where large quantities of petroleum products are
transported.
(h) The NPFC is responsible for implementing those portions of Title
I of the OPA that have been delegated to the Secretary of the department
in which the Coast Guard is operating. The NPFC is responsible for
addressing funding issues arising from discharges and threats of
discharges of oil. The NPFC:
(1) Issues Certificates of Financial Responsibility to owners and
operators of vessels to pay for costs and damages that are incurred by
their vessels as a result of oil discharges;
(2) Provides funding for various response organizations for timely
abatement and removal actions related to oil discharges;
[[Page 39]]
(3) Provides equitable compensation to claimants who sustain costs
and damages from oil discharges when the responsible party fails to do
so;
(4) Recovers monies from persons liable for costs and damages
resulting from oil discharges to the full extent of liability under the
law; and
(5) Provides funds to initiate natural resource damage assessments.
Sec. 300.150 Worker health and safety.
(a) Response actions under the NCP will comply with the provisions
for response action worker safety and health in 29 CFR 1910.120. The NRS
meets the requirements of 29 CFR 1910.120 concerning use of an incident
command system.
(b) In a response action taken by a responsible party, the
responsible party must assure that an occupational safety and health
program consistent with 29 CFR 1910.120 is made available for the
protection of workers at the response site.
(c) In a response taken under the NCP by a lead agency, an
occupational safety and health program should be made available for the
protection of workers at the response site, consistent with, and to the
extent required by, 29 CFR 1910.120. Contracts relating to a response
action under the NCP should contain assurances that the contractor at
the response site will comply with this program and with any applicable
provisions of the Occupational Safety and Health Act of 1970 (29 U.S.C.
651 et seq.) (OSH Act) and state laws with plans approved under section
18 of the OSH Act.
(d) When a state, or political subdivision of a state, without an
OSHA-approved state plan is the lead agency for response, the state or
political subdivision must comply with standards in 40 CFR part 311,
promulgated by EPA pursuant to section 126(f) of SARA.
(e) Requirements, standards, and regulations of the OSH Act and of
state OSH laws not directly referenced in paragraphs (a) through (d) of
this section, must be complied with where applicable. Federal OSH Act
requirements include, among other things, Construction Standards (29 CFR
part 1926), General Industry Standards (29 CFR part 1910), and the
general duty requirement of section 5(a)(1) of the OSH Act (29 U.S.C.
654(a)(1)). No action by the lead agency with respect to response
activities under the NCP constitutes an exercise of statutory authority
within the meaning of section 4(b)(1) of the OSH Act. All governmental
agencies and private employers are directly responsible for the health
and safety of their own employees.
Sec. 300.155 Public information and community relations.
(a) When an incident occurs, it is imperative to give the public
prompt, accurate information on the nature of the incident and the
actions underway to mitigate the damage. OSCs/RPMs and community
relations personnel should ensure that all appropriate public and
private interests are kept informed and that their concerns are
considered throughout a response. They should coordinate with available
public affairs/community relations resources to carry out this
responsibility by establishing, as appropriate, a Joint Information
Center bringing together resources from federal and state agencies and
the responsible party.
(b) An on-scene news office may be established to coordinate media
relations and to issue official federal information on an incident.
Whenever possible, it will be headed by a representative of the lead
agency. The OSC/RPM determines the location of the on-scene news office,
but every effort should be made to locate it near the scene of the
incident. If a participating agency believes public interest warrants
the issuance of statements and an on-scene news office has not been
established, the affected agency should recommend its establishment. All
federal news releases or statements by participating agencies should be
cleared through the OSC/RPM. Information dissemination relating to
natural resource damage assessment activities shall be coordinated
through the lead administrative trustee. The designated lead
administrative trustee may assist the OSC/RPM by disseminating
information on issues relating to damage assessment activities.
Following termination of removal activity, information dissemination on
damage assessment activities
[[Page 40]]
shall be through the lead administrative trustee.
(c) The community relations requirements specified in Sec. Sec.
300.415, 300.430, and 300.435 apply to removal, remedial, and
enforcement actions and are intended to promote active communication
between communities affected by discharges or releases and the lead
agency responsible for response actions. Community Relations Plans
(CRPs) are required by EPA for certain response actions. The OSC/RPM
should ensure coordination with such plans which may be in effect at the
scene of a discharge or release or which may need to be developed during
follow-up activities.
Sec. 300.160 Documentation and cost recovery.
(a) For releases of a hazardous substance, pollutant, or
contaminant, the following provisions apply:
(1) During all phases of response, the lead agency shall complete
and maintain documentation to support all actions taken under the NCP
and to form the basis for cost recovery. In general, documentation shall
be sufficient to provide the source and circumstances of the release,
the identity of responsible parties, the response action taken, accurate
accounting of federal, state, or private party costs incurred for
response actions, and impacts and potential impacts to the public health
and welfare and the environment. Where applicable, documentation shall
state when the NRC received notification of a release of a reportable
quantity.
(2) The information and reports obtained by the lead agency for
Fund-financed response actions shall, as appropriate, be transmitted to
the chair of the RRT. Copies can then be forwarded to the NRT, members
of the RRT, and others as appropriate.
(3) The lead agency shall make available to the trustees of affected
natural resources information and documentation that can assist the
trustees in the determination of actual or potential natural resource
injuries.
(b) For discharges of oil, documentation and cost recovery
provisions are described in Sec. 300.315.
(c) Response actions undertaken by the participating agencies shall
be carried out under existing programs and authorities when available.
Federal agencies are to make resources available, expend funds, or
participate in response to discharges and releases under their existing
authority. Interagency agreements may be signed when necessary to ensure
that the federal resources will be available for a timely response to a
discharge or release. The ultimate decision as to the appropriateness of
expending funds rests with the agency that is held accountable for such
expenditures. Further funding provisions for discharges of oil are
described in Sec. 300.335.
(d) The Administrator of EPA and the Administrator of the Agency for
Toxic Substances and Disease Registry (ATSDR) shall assure that the
costs of health assessment or health effect studies conducted under the
authority of CERCLA section 104(i) are documented in accordance with
standard EPA procedures for cost recovery. Documentation shall include
information on the nature of the hazardous substances addressed by the
research, information concerning the locations where these substances
have been found, and any available information on response actions taken
concerning these substances at the location.
Sec. 300.165 OSC reports.
(a) As requested by the NRT or RRT, the OSC/RPM shall submit to the
NRT or RRT a complete report on the removal operation and the actions
taken. The RRT shall review the OSC report and send to the NRT a copy of
the OSC report with its comments or recommendations within 30 days after
the RRT has received the OSC report.
(b) The OSC report shall record the situation as it developed, the
actions taken, the resources committed, and the problems encountered.
Sec. 300.170 Federal agency participation.
Federal agencies listed in Sec. 300.175 have duties established by
statute, executive order, or Presidential directive which may apply to
federal response actions following, or in prevention of, the discharge
of oil or release of a hazardous substance, pollutant, or contaminant.
Some of these agencies also have duties relating to the restoration,
[[Page 41]]
rehabilitation, replacement, or acquisition of equivalent natural
resources injured or lost as a result of such discharge or release as
described in subpart G of this part. The NRT, RRT, and Area Committee
organizational structure, and the NCP, RCPs and ACPs, described in Sec.
300.210, provide for agencies to coordinate with each other in carrying
out these duties.
(a) Federal agencies may be called upon by an OSC/RPM during
response planning and implementation to provide assistance in their
respective areas of expertise, as described in Sec. 300.175, consistent
with the agencies' capabilities and authorities.
(b) In addition to their general responsibilities, federal agencies
should:
(1) Make necessary information available to the Secretary of the
NRT, RRTs, Area Committees, and OSCs/RPMs.
(2) Provide representatives to the NRT and RRTs and otherwise assist
RRTs and OSCs, as necessary, in formulating RCPs and ACPs.
(3) Inform the NRT, RRTs, and Area Committees, consistent with
national security considerations, of changes in the availability of
resources that would affect the operations implemented under the NCP.
(c) All federal agencies are responsible for reporting releases of
hazardous substances from facilities or vessels under their jurisdiction
or control in accordance with section 103 of CERCLA.
(d) All federal agencies are encouraged to report releases of
pollutants or contaminants and must report discharges of oil, as
required in 40 CFR part 110, from facilities or vessels under their
jurisdiction or control to the NRC.
Sec. 300.175 Federal agencies: additional responsibilities and
assistance.
(a) During preparedness planning or in an actual response, various
federal agencies may be called upon to provide assistance in their
respective areas of expertise, as indicated in paragraph (b) of this
section, consistent with agency legal authorities and capabilities.
(b) The federal agencies include:
(1) USCG, as provided in 14 U.S.C. 1-3, is an agency in DOT, except
when operating as an agency in the United States Navy (USN) in time of
war. The USCG provides the NRT vice chair, co-chairs for the standing
RRTs, and predesignated OSCs for the coastal zone, as described in Sec.
300.120(a)(1). The USCG maintains continuously manned facilities which
can be used for command, control, and surveillance of oil discharges and
hazardous substance releases occurring in the coastal zone. The USCG
also offers expertise in domestic and international fields of port
safety and security, maritime law enforcement, ship navigation and
construction, and the manning, operation, and safety of vessels and
marine facilities. The USCG may enter into a contract or cooperative
agreement with the appropriate state in order to implement a response
action.
(2) EPA chairs the NRT and co-chairs, with the USCG, the standing
RRTs; provides predesignated OSCs for all inland areas for which an ACP
is required under CWA section 311(j) and for discharges and releases
occurring in the inland zone and RPMs for remedial actions except as
otherwise provided; and generally provides the SSC for responses in the
inland zone. EPA provides expertise on human health and ecological
effects of oil discharges or releases of hazardous substances,
pollutants, or contaminants; ecological and human health risk assessment
methods; and environmental pollution control techniques. Access to EPA's
scientific expertise can be facilitated through the EPA representative
to the Research and Development Committee of the National Response Team;
the EPA Office of Research and Development's Superfund Technical
Liaisons or Regional Scientists located in EPA Regional offices; or
through EPA's Office of Science Planning and Regulatory Evaluation. EPA
also provides legal expertise on the interpretation of CERCLA and other
environmental statutes. EPA may enter into a contract or cooperative
agreement with the appropriate state in order to implement a response
action.
[[Page 42]]
(3) FEMA provides guidance, policy and program advice, and technical
assistance in hazardous materials, chemical, and radiological emergency
preparedness activities (including planning, training, and exercising).
FEMA's primary point of contact for administering financial and
technical assistance to state and local governments to support their
efforts to develop and maintain an effective emergency management and
response capability is the Preparedness, Training, and Exercises
Directorate.
(4) DOD has responsibility to take all action necessary with respect
to releases where either the release is on, or the sole source of the
release is from, any facility or vessel under the jurisdiction, custody,
or control of DOD. In addition to those capabilities provided by
SUPSALV, DOD may also, consistent with its operational requirements and
upon request of the OSC, provide locally deployed USN oil spill
equipment and provide assistance to other federal agencies on request.
The following two branches of DOD have particularly relevant expertise:
(i) The United States Army Corps of Engineers has specialized
equipment and personnel for maintaining navigation channels, for
removing navigation obstructions, for accomplishing structural repairs,
and for performing maintenance to hydropower electric generating
equipment. The Corps can also provide design services, perform
construction, and provide contract writing and contract administrative
services for other federal agencies.
(ii) The U.S. Navy Supervisor of Salvage (SUPSALV) is the branch of
service within DOD most knowledgeable and experienced in ship salvage,
shipboard damage control, and diving. The USN has an extensive array of
specialized equipment and personnel available for use in these areas as
well as specialized containment, collection, and removal equipment
specifically designed for salvage-related and open-sea pollution
incidents.
(5) DOE generally provides designated OSCs/RPMs that are responsible
for taking all response actions with respect to releases where either
the release is on, or the sole source of the release is from, any
facility or vessel under its jurisdiction, custody, or control,
including vessels bareboat-chartered and operated. In addition, under
the FRERP, DOE provides advice and assistance to other OSCs/RPMs for
emergency actions essential for the control of immediate radiological
hazards. Incidents that qualify for DOE radiological advice and
assistance are those believed to involve source, by-product, or special
nuclear material or other ionizing radiation sources, including radium,
and other naturally occurring radionuclides, as well as particle
accelerators. Assistance is available through direct contact with the
appropriate DOE Radiological Assistance Program Regional Office.
(6) The Department of Agriculture (USDA) has scientific and
technical capability to measure, evaluate, and monitor, either on the
ground or by use of aircraft, situations where natural resources
including soil, water, wildlife, and vegetation have been impacted by
fire, insects and diseases, floods, hazardous substances, and other
natural or man-caused emergencies. The USDA may be contacted through
Forest Service emergency staff officers who are the designated members
of the RRT. Agencies within USDA have relevant capabilities and
expertise as follows:
(i) The Forest Service has responsibility for protection and
management of national forests and national grasslands. The Forest
Service has personnel, laboratory, and field capability to measure,
evaluate, monitor, and control as needed, releases of pesticides and
other hazardous substances on lands under its jurisdiction.
(ii) The Agriculture Research Service (ARS) administers an applied
and developmental research program in animal and plant protection and
production; the use and improvement of soil, water, and air; the
processing, storage, and distribution of farm products; and human
nutrition. The ARS has the capabilities to provide regulation of, and
evaluation and training for, employees exposed to biological, chemical,
radiological, and industrial hazards. In emergency situations, the ARS
can identify, control, and abate pollution in the areas of air, soil,
wastes, pesticides, radiation, and toxic substances for ARS facilities.
[[Page 43]]
(iii) The Soil Conservation Service (SCS) has personnel in nearly
every county in the nation who are knowledgeable in soil, agronomy,
engineering, and biology. These personnel can help to predict the
effects of pollutants on soil and their movements over and through
soils. Technical specialists can assist in identifying potential
hazardous waste sites and provide review and advice on plans for
remedial measures.
(iv) The Animal and Plant Health Inspection Service (APHIS) can
respond in an emergency to regulate movement of diseased or infected
organisms to prevent the spread and contamination of nonaffected areas.
(v) The Food Safety and Inspection Service (FSIS) has responsibility
to prevent meat and poultry products contaminated with harmful
substances from entering human food channels. In emergencies, the FSIS
works with other federal and state agencies to establish acceptability
for slaughter of exposed or potentially exposed animals and their
products. In addition they are charged with managing the Federal
Radiological Emergency Response Program for the USDA.
(7) DOC, through NOAA, provides scientific support for response and
contingency planning in coastal and marine areas, including assessments
of the hazards that may be involved, predictions of movement and
dispersion of oil and hazardous substances through trajectory modeling,
and information on the sensitivity of coastal environments to oil and
hazardous substances and associated clean-up and mitigation methods;
provides expertise on living marine resources and their habitats,
including endangered species, marine mammals and National Marine
Sanctuary ecosystems; provides information on actual and predicted
meteorological, hydrological, ice, and oceanographic conditions for
marine, coastal, and inland waters, and tide and circulation data for
coastal and territorial waters and for the Great Lakes.
(8) HHS assists with the assessment, preservation, and protection of
human health and helps ensure the availability of essential human
services. HHS provides technical and nontechnical assistance in the form
of advice, guidance, and resources to other federal agencies as well as
state and local governments.
(i) The principal HHS response comes from the U.S. Public Health
Service and is coordinated from the Office of the Assistant Secretary
for Health, and various Public Health Service regional offices. Within
the Public Health Service, the primary response to a hazardous materials
emergency comes from Agency for Toxic Substances and Disease Registry
(ATSDR) and the Centers for Disease Control (CDC). Both ATSDR and CDC
have a 24-hour emergency response capability wherein scientific and
technical personnel are available to provide technical assistance to the
lead federal agency and state and local response agencies on human
health threat assessment and analysis, and exposure prevention and
mitigation. Such assistance is used for situations requiring evacuation
of affected areas, human exposure to hazardous materials, and technical
advice on mitigation and prevention. CDC takes the lead during petroleum
releases regulated under the CWA and OPA while ATSDR takes the lead
during chemical releases under CERCLA. Both agencies are mutually
supportive.
(ii) Other Public Health Service agencies involved in support during
hazardous materials incidents either directly or through ATSDR/CDC
include the Food and Drug Administration, the Health Resources and
Services Administration, the Indian Health Service, and the National
Institutes of Health.
(iii) Statutory authority for HHS/National Institutes for
Environmental Health Sciences (NIEHS) involvement in hazardous materials
accident prevention is non-regulatory in nature and focused on two
primary areas for preventing community and worker exposure to hazardous
materials releases: Worker safety training and basic research
activities. Under section 126 of SARA, NIEHS is given statutory
authority for supporting development of curricula and model training
programs for waste workers and chemical emergency responders.
Under section 118(b) of the Hazardous Materials Transportation and
Uniform Safety Act (HMTUSA) (49 U.S.C. 1802 et
[[Page 44]]
seq.), NIEHS also administers the Hazmat Employee Training Program to
prepare curricula and training for hazardous materials transportation
workers. In the basic research arena, NIEHS is authorized under section
311 of SARA to conduct a hazardous substance basic research and training
program to evaluate toxic effects and assess human health risks from
accidental releases of hazardous materials. Under Title IX, section
901(h) of the Clean Air Act Amendments, NIEHS also is authorized to
conduct basic research on air pollutants, as well as train physicians in
environmental health. Federal research and training in hazardous
materials release prevention represents an important non-regulatory
activity and supplements ongoing private sector programs.
(9) DOI may be contacted through Regional Environmental Officers
(REOs), who are the designated members of RRTs. Department land managers
have jurisdiction over the national park system, national wildlife
refuges and fish hatcheries, the public lands, and certain water
projects in western states. In addition, bureaus and offices have
relevant expertise as follows:
(i) United States Fish and Wildlife Service (USFWS) and other
Bureaus: Anadromous and certain other fishes and wildlife, including
endangered and threatened species, migratory birds, and certain marine
mammals; waters and wetlands; and effects on natural resources.
(ii) The National Biological Survey performs research in support of
biological resource management; inventories, monitors, and reports on
the status and trends in the Nation's biotic resources; and transfers
the information gained in research and monitoring to resource managers
and others concerned with the care, use, and conservation of the
Nation's natural resources. The National Biological Survey has
laboratory/research facilities.
(iii) Geological Survey: Geology, hydrology (ground water and
surface water), and natural hazards.
(iv) Bureau of Land Management: Minerals, soils, vegetation,
wildlife, habitat, archaeology, and wilderness; and hazardous materials.
(v) Minerals Management Service: Oversight of offshore oil and gas
exploration and production facilities and associated pipelines and
pipeline facilities under the Outer Continental Shelf Lands Act and the
CWA; oil spill response technology research; and establishing oil
discharge contingency planning requirements for offshore facilities.
(vi) Bureau of Mines: Analysis and identification of inorganic
hazardous substances and technical expertise in metals and metallurgy
relevant to site cleanup.
(vii) Office of Surface Mining: Coal mine wastes and land
reclamation.
(viii) National Park Service: General biological, natural, and
cultural resource managers to evaluate, measure, monitor, and contain
threats to park system lands and resources; archaeological and
historical expertise in protection, preservation, evaluation, impact
mitigation, and restoration of cultural resources; emergency personnel.
(ix) Bureau of Reclamation: Operation and maintenance of water
projects in the West; engineering and hydrology; and reservoirs.
(x) Bureau of Indian Affairs: Coordination of activities affecting
Indian lands; assistance in identifying Indian tribal government
officials.
(xi) Office of Territorial Affairs: Assistance in implementing the
NCP in American Samoa, Guam, the Pacific Island Governments, the
Northern Mariana Islands, and the Virgin Islands.
(10) The Department of Justice (DOJ) can provide expert advice on
complicated legal questions arising from discharges or releases, and
federal agency responses. In addition, the DOJ represents the federal
government, including its agencies, in litigation relating to such
discharges or releases. Other legal issues or questions shall be
directed to the federal agency counsel for the agency providing the OSC/
RPM for the response.
(11) The Department of Labor (DOL), through OSHA and the states
operating plans approved under section 18 of the OSH Act, has authority
to conduct
[[Page 45]]
safety and health inspections of hazardous waste sites to assure that
employees are being protected and to determine if the site is in
compliance with:
(i) Safety and health standards and regulations promulgated by OSHA
(or the states) in accordance with section 126 of SARA and all other
applicable standards; and
(ii) Regulations promulgated under the OSH Act and its general duty
clause. OSHA inspections may be self-generated, consistent with its
program operations and objectives, or may be conducted in response to
requests from EPA or another lead agency, or in response to accidents or
employee complaints. OSHA may also conduct inspections at hazardous
waste sites in those states with approved plans that choose not to
exercise their jurisdiction to inspect such sites. On request, OSHA will
provide advice and consultation to EPA and other NRT/RRT agencies as
well as to the OSC/RPM regarding hazards to persons engaged in response
activities. OSHA may also take any other action necessary to assure that
employees are properly protected at such response activities. Any
questions about occupational safety and health at these sites may be
referred to the OSHA Regional Office.
(12) DOT provides response expertise pertaining to transportation of
oil or hazardous substances by all modes of transportation. Through the
Research and Special Programs Administration (RSPA), DOT offers
expertise in the requirements for packaging, handling, and transporting
regulated hazardous materials. DOT, through RSPA, establishes oil
discharge contingency planning requirements for pipelines, transport by
rail and containers or bulk transport of oil.
(13) The Department of State (DOS) will lead in the development of
international joint contingency plans. It will also help to coordinate
an international response when discharges or releases cross
international boundaries or involve foreign flag vessels. Additionally,
DOS will coordinate requests for assistance from foreign governments and
U.S. proposals for conducting research at incidents that occur in waters
of other countries.
(14) The Nuclear Regulatory Commission will respond, as appropriate,
to releases of radioactive materials by its licensees, in accordance
with the NRC Incident Response Plan (NUREG-0728) to monitor the actions
of those licensees and assure that the public health and environment are
protected and adequate recovery operations are instituted. The Nuclear
Regulatory Commission will keep EPA informed of any significant actual
or potential releases in accordance with procedural agreements. In
addition, the Nuclear Regulatory Commission will provide advice to the
OSC/RPM when assistance is required in identifying the source and
character of other hazardous substance releases where the Nuclear
Regulatory Commission has licensing authority for activities utilizing
radioactive materials.
(15) The General Services Administration (GSA) provides logistic and
telecommunications support to federal agencies. During an emergency
situation, GSA quickly responds to aid state and local governments as
directed by other federal agencies. The type of support provided might
include leasing and furnishing office space, setting up
telecommunications and transportation services, and advisory assistance.
Sec. 300.180 State and local participation in response.
(a) Each state governor is requested to designate one state office/
representative to represent the state on the appropriate RRT. The
state's office/representative may participate fully in all activities of
the appropriate RRT. Each state governor is also requested to designate
a lead state agency that will direct state-lead response operations.
This agency is responsible for designating the lead state response
official for federal and/or state-lead response actions, and
coordinating/communicating with any other state agencies, as
appropriate. Local governments are invited to participate in activities
on the appropriate RRT as may be provided by state law or arranged by
the state's representative. Indian tribes wishing to participate should
assign one person or office to represent the
[[Page 46]]
tribal government on the appropriate RRT.
(b) Appropriate local and state officials (including Indian tribes)
will participate as part of the response structure as provided in the
ACP.
(c) In addition to meeting the requirements for local emergency
plans under SARA section 303, state and local government agencies are
encouraged to include contingency planning for responses, consistent
with the NCP, RCP, and ACP in all emergency and disaster planning.
(d) For facilities not addressed under CERCLA or the CWA, states are
encouraged to undertake response actions themselves or to use their
authorities to compel potentially responsible parties to undertake
response actions.
(e) States are encouraged to enter into cooperative agreements
pursuant to sections 104 (c)(3) and (d) of CERCLA to enable them to
undertake actions authorized under subpart E of the NCP. Requirements
for entering into these agreements are included in subpart F of the NCP.
A state agency that acts pursuant to such agreements is referred to as
the lead agency. In the event there is no cooperative agreement, the
lead agency can be designated in a SMOA or other agreement.
(f) Because state and local public safety organizations would
normally be the first government representatives at the scene of a
discharge or release, they are expected to initiate public safety
measures that are necessary to protect public health and welfare and
that are consistent with containment and cleanup requirements in the
NCP, and are responsible for directing evacuations pursuant to existing
state or local procedures.
Sec. 300.185 Nongovernmental participation.
(a) Industry groups, academic organizations, and others are
encouraged to commit resources for response operations. Specific
commitments should be listed in the RCP and ACP. Those entities required
to develop tank vessel and facility response plans under CWA section
311(j) must be able to respond to a worst case discharge to the maximum
extent practicable, and shall commit sufficient resources to implement
other aspects of those plans in accordance with the requirements of 30
CFR part 254, 33 CFR parts 150, 154, and 155; 40 CFR part 112; and 49
CFR parts 171 and 194.
(b) The technical and scientific information generated by the local
community, along with information from federal, state, and local
governments, should be used to assist the OSC/RPM in devising response
strategies where effective standard techniques are unavailable. Such
information and strategies will be incorporated into the ACP, as
appropriate. The SSC may act as liaison between the OSC/RPM and such
interested organizations.
(c) ACPs shall establish procedures to allow for well organized,
worthwhile, and safe use of volunteers, including compliance with Sec.
300.150 regarding worker health and safety. ACPs should provide for the
direction of volunteers by the OSC/RPM or by other federal, state, or
local officials knowledgeable in contingency operations and capable of
providing leadership. ACPs also should identify specific areas in which
volunteers can be used, such as beach surveillance, logistical support,
and bird and wildlife treatment. Unless specifically requested by the
OSC/RPM, volunteers generally should not be used for physical removal or
remedial activities. If, in the judgment of the OSC/RPM, dangerous
conditions exist, volunteers shall be restricted from on-scene
operations.
(d) Nongovernmental participation must be in compliance with the
requirements of subpart H of this part if any recovery of costs will be
sought.
Subpart C_Planning and Preparedness
Source: 59 FR 47440, Sept. 15, 1994, unless otherwise noted.
Sec. 300.200 General.
This subpart summarizes emergency preparedness activities relating
to discharges of oil and releases of hazardous substances, pollutants,
or contaminants; describes the three levels of contingency planning
under the national response system; and cross-references state and local
emergency preparedness activities under SARA Title III,
[[Page 47]]
also known as the ``Emergency Planning and Community Right-to-Know Act
of 1986'' but referred to herein as ``Title III.'' Regulations
implementing Title III are codified at 40 CFR subchapter J.
Sec. 300.205 Planning and coordination structure.
(a) National. As described in Sec. 300.110, the NRT is responsible
for national planning and coordination.
(b) Regional. As described in Sec. 300.115, the RRTs are
responsible for regional planning and coordination.
(c) Area. As required by section 311(j) of the CWA, under the
direction of the federal OSC for its area, Area Committees comprising
qualified personnel of federal, state, and local agencies shall be
responsible for:
(1) Preparing an ACP for their areas (as described in Sec.
300.210(c));
(2) Working with appropriate federal, state, and local officials to
enhance the contingency planning of those officials and to assure pre-
planning of joint response efforts, including appropriate procedures for
mechanical recovery, dispersal, shoreline cleanup, protection of
sensitive environmental areas, and protection, rescue, and
rehabilitation of fisheries and wildlife; and
(3) Working with appropriate federal, state, and local officials to
expedite decisions for the use of dispersants and other mitigating
substances and devices.
(d) State. As provided by sections 301 and 303 of Title III, the
SERC of each state, appointed by the Governor, is to designate emergency
planning districts, appoint Local Emergency Planning Committees (LEPCs),
supervise and coordinate their activities, and review local emergency
response plans, which are described in Sec. 300.215. The SERC also is
to establish procedures for receiving and processing requests from the
public for information generated by Title III reporting requirements and
to designate an official to serve as coordinator for information.
(e) Local. As provided by sections 301 and 303 of Title III,
emergency planning districts are designated by the SERC in order to
facilitate the preparation and implementation of emergency plans. Each
LEPC is to prepare a local emergency response plan for the emergency
planning district and establish procedures for receiving and processing
requests from the public for information generated by Title III
reporting requirements. The LEPC is to appoint a chair and establish
rules for the LEPC. The LEPC is to designate an official to serve as
coordinator for information and designate in its plan a community
emergency coordinator.
(f) As required by section 311(j)(5) of the CWA, a tank vessel, as
defined under section 2101 of title 46, U.S. Code, an offshore facility,
and an onshore facility that, because of its location, could reasonably
be expected to cause substantial harm to the environment by discharging
into or on the navigable waters, adjoining shorelines, or exclusive
economic zone must prepare and submit a plan for responding, to the
maximum extent practicable, to a worst case discharge, and to a
substantial threat of such a discharge, of oil or a hazardous substance.
(g) The relationship of these plans is described in Figure 4.
[[Page 48]]
[GRAPHIC] [TIFF OMITTED] TC02AU92.004
Sec. 300.210 Federal contingency plans.
There are three levels of contingency plans under the national
response system: The National Contingency Plan, RCPs, and ACPs. These
plans are available for inspection at EPA regional offices or USCG
district offices. Addresses and telephone numbers for these offices may
be found in the United States Government Manual, issued annually, or in
local telephone directories.
(a) The National Contingency Plan. The purpose and objectives,
authority, and scope of the NCP are described in Sec. Sec. 300.1
through 300.3.
(b) Regional Contingency Plans. The RRTs, working with the states,
shall develop federal RCPs for each standard federal region, Alaska,
Oceania in the
[[Page 49]]
Pacific, and the Caribbean to coordinate timely, effective response by
various federal agencies and other organizations to discharges of oil or
releases of hazardous substances, pollutants, or contaminants. RCPs
shall, as appropriate, include information on all useful facilities and
resources in the region, from government, commercial, academic, and
other sources. To the greatest extent possible, RCPs shall follow the
format of the NCP and be coordinated with state emergency response
plans, ACPs, which are described in Sec. 300.210(c), and Title III
local emergency response plans, which are described in Sec. 300.215.
Such coordination should be accomplished by working with the SERCs in
the region covered by the RCP. RCPs shall contain lines of demarcation
between the inland and coastal zones, as mutually agreed upon by USCG
and EPA.
(c) Area Contingency Plans. (1) Under the direction of an OSC and
subject to approval by the lead agency, each Area Committee, in
consultation with the appropriate RRTs, Coast Guard DRGs, the NSFCC,
SSCs, LEPCs, and SERCs, shall develop an ACP for its designated area.
This plan, when implemented in conjunction with other provisions of the
NCP, shall be adequate to remove a worst case discharge under Sec.
300.324, and to mitigate or prevent a substantial threat of such a
discharge, from a vessel, offshore facility, or onshore facility
operating in or near the area.
(2) The areas of responsibility may include several Title III local
planning districts, or parts of such districts. In developing the ACP,
the OSC shall coordinate with affected SERCs and LEPCs. The ACP shall
provide for a well coordinated response that is integrated and
compatible, to the greatest extent possible, with all appropriate
response plans of state, local, and non-federal entities, and especially
with Title III local emergency response plans.
(3) The ACP shall include the following:
(i) A description of the area covered by the plan, including the
areas of special economic or environmental importance that might be
damaged by a discharge;
(ii) A description in detail of the responsibilities of an owner or
operator and of federal, state, and local agencies in removing a
discharge, and in mitigating or preventing a substantial threat of a
discharge;
(iii) A list of equipment (including firefighting equipment),
dispersants, or other mitigating substances and devices, and personnel
available to an owner or operator and federal, state, and local
agencies, to ensure an effective and immediate removal of a discharge,
and to ensure mitigation or prevention of a substantial threat of a
discharge (this may be provided in an appendix or by reference to other
relevant emergency plans (e.g., state or LEPC plans), which may include
such equipment lists);
(iv) A description of procedures to be followed for obtaining an
expedited decision regarding the use of dispersants; and
(v) A detailed description of how the plan is integrated into other
ACPs and tank vessel, offshore facility, and onshore facility response
plans approved by the President, and into operating procedures of the
NSFCC.
(4)(i) In order to provide for coordinated, immediate and effective
protection, rescue, and rehabilitation of, and minimization of risk of
injury to, fish and wildlife resources and habitat, Area Committees
shall incorporate into each ACP a detailed annex containing a Fish and
Wildlife and Sensitive Environments Plan that is consistent with the RCP
and NCP. The annex shall be prepared in consultation with the USFWS and
NOAA and other interested natural resource management agencies and
parties. It shall address fish and wildlife resources and their habitat,
and shall include other areas considered sensitive environments in a
separate section of the annex, based upon Area Committee
recommendations. The annex will provide the necessary information and
procedures to immediately and effectively respond to discharges that may
adversely affect fish and wildlife and their habitat and sensitive
environments, including provisions for a response to a worst case
discharge. Such information shall include the identification of
appropriate agencies and
[[Page 50]]
their responsibilities, procedures to notify these agencies following a
discharge or threat of a discharge, protocols for obtaining required
fish and wildlife permits and other necessary permits, and provisions to
ensure compatibility of annex-related activities with removal
operations.
(ii) The annex shall:
(A) Identify and establish priorities for fish and wildlife
resources and their habitats and other important sensitive areas
requiring protection from any direct or indirect effects from discharges
that may occur. These effects include, but are not limited to, any
seasonal or historical use, as well as all critical, special,
significant, or otherwise designated protected areas.
(B) Provide a mechanism to be used during a spill response for
timely identification of protection priorities of those fish and
wildlife resources and habitats and sensitive environmental areas that
may be threatened or injured by a discharge. These include as
appropriate, not only marine and freshwater species, habitats, and their
food sources, but also terrestrial wildlife and their habitats that may
be affected directly by onshore oil or indirectly by oil-related
factors, such as loss or contamination of forage. The mechanism shall
also provide for expeditious evaluation and appropriate consultations on
the effects to fish and wildlife, their habitat, and other sensitive
environments from the application of chemical countermeasures or other
countermeasures not addressed under paragraph (e)(4)(iii).
(C) Identify potential environmental effects on fish and wildlife,
their habitat, and other sensitive environments resulting from removal
actions or countermeasures, including the option of no removal. Based on
this evaluation of potential environmental effects, the annex should
establish priorities for application of countermeasure and removal
actions to habitats within the geographic region of the ACP. The annex
should establish methods to minimize the identified effects on fish and
wildlife because of response activities, including, but not limited to:
Disturbance of sensitive areas and habitats; illegal or inadvertent
taking or disturbance of fish and wildlife or specimens by response
personnel; and fish and wildlife, their habitat, and environmentally
sensitive areas coming in contact with various cleaning or
bioremediation agents. Furthermore, the annex should identify the areas
where the movement of oiled debris may pose a risk to resident,
transient, or migratory fish and wildlife, and other sensitive
environments and should discuss measures to be considered for removing
such oiled debris in a timely fashion to reduce such risk.
(D) Provide for pre-approval of application of specific
countermeasures or removal actions that, if expeditiously applied, will
minimize adverse spill-induced impacts to fish and wildlife resources,
their habitat, and other sensitive environments. Such pre-approval plans
must be consistent with paragraphs (c)(4)(ii)(B) and (C) of this section
and subpart J requirements, and must have the concurrence of the natural
resource trustees.
(E) Provide monitoring plan(s) to evaluate the effectiveness of
different countermeasures or removal actions in protecting the
environment. Monitoring should include ``set-aside'' or ``control''
areas, where no mitigative actions are taken.
(F) Identify and plan for the acquisition and utilization of
necessary response capabilities for protection, rescue, and
rehabilitation of fish and wildlife resources and habitat. This may
include appropriately permitted private organizations and individuals
with appropriate expertise and experience. The suitable organizations
should be identified in cooperation with natural resource law
enforcement agencies. Such capabilities shall include, but not be
limited to, identification of facilities and equipment necessary for
deterring sensitive fish and wildlife from entering oiled areas, and for
capturing, holding, cleaning, and releasing injured wildlife. Plans for
the provision of such capabilities shall ensure that there is no
interference with other OSC removal operations.
(G) Identify appropriate federal and state agency contacts and
alternates responsible for coordination of fish and wildlife rescue and
rehabilitation and protection of sensitive environments; identify and
provide for required fish
[[Page 51]]
and wildlife handling and rehabilitation permits necessary under federal
and state laws; and provide guidance on the implementation of law
enforcement requirements included under current federal and state laws
and corresponding regulations. Requirements include, but are not limited
to procedures regarding the capture, transport, rehabilitation, and
release of wildlife exposed to or threatened by oil, and disposal of
contaminated carcasses of wildlife.
(H) Identify and secure the means for providing, if needed, the
minimum required OSHA and EPA training for volunteers, including those
who assist with injured wildlife.
(I) Define the requirements for evaluating the compatibility between
this annex and non-federal response plans (including those of vessels,
facilities, and pipelines) on issues affecting fish and wildlife, their
habitat, and sensitive environments.
Sec. 300.211 OPA facility and vessel response plans.
This section describes and cross-references the regulations that
implement section 311(j)(5) of the CWA. A tank vessel, as defined under
section 2101 of title 46, U.S. Code, an offshore facility, and an
onshore facility that, because of its location, could reasonably expect
to cause substantial harm to the environment by discharging into or on
the navigable waters, adjoining shorelines, or exclusive economic zone
must prepare and submit a plan for responding, to the maximum extent
practicable, to a worst case discharge, and to a substantial threat of
such a discharge, of oil or a hazardous substance. These response plans
are required to be consistent with applicable Area Contingency Plans.
These regulations are codified as follows:
(a) For tank vessels, these regulations are codified in 33 CFR part
155;
(b) For offshore facilities, these regulations are codified in 30
CFR part 254;
(c) For non-transportation related onshore facilities, these
regulations are codified in 40 CFR 112.20;
(d) For transportation-related onshore facilities, these regulations
are codified in 33 CFR part 154;
(e) For pipeline facilities, these regulations are codified in 49
CFR part 194; and
(f) For rolling stock, these regulations are codified in 49 CFR part
106 et al.
Sec. 300.212 Area response drills.
The OSC periodically shall conduct drills of removal capability
(including fish and wildlife response capability), without prior notice,
in areas for which ACPs are required by Sec. 300.210(c) and under
relevant tank vessel and facility response plans.
Sec. 300.215 Title III local emergency response plans.
This section describes and cross-references the regulations that
implement Title III. These regulations are codified at 40 CFR part 355.
(a) Each LEPC is to prepare an emergency response plan in accordance
with section 303 of Title III and review the plan once a year, or more
frequently as changed circumstances in the community or at any facility
may require. Such Title III local emergency response plans should be
closely coordinated with applicable federal ACPs and state emergency
response plans.
(b) [Reserved]
Sec. 300.220 Related Title III issues.
Other related Title III requirements are found in 40 CFR part 355.
Subpart D_Operational Response Phases for Oil Removal
Source: 59 FR 47444, Sept. 15, 1994, unless otherwise noted.
Sec. 300.300 Phase I--Discovery or notification.
(a) A discharge of oil may be discovered through:
(1) A report submitted by the person in charge of a vessel or
facility, in accordance with statutory requirements;
(2) Deliberate search by patrols;
(3) Random or incidental observation by government agencies or the
public; or
(4) Other sources.
(b) Any person in charge of a vessel or a facility shall, as soon as
he or she has knowledge of any discharge from
[[Page 52]]
such vessel or facility in violation of section 311(b)(3) of the CWA,
immediately notify the NRC. If direct reporting to the NRC is not
practicable, reports may be made to the USCG or EPA predesignated OSC
for the geographic area where the discharge occurs. The EPA
predesignated OSC may also be contacted through the regional 24-hour
emergency response telephone number. All such reports shall be promptly
relayed to the NRC. If it is not possible to notify the NRC or
predesignated OSC immediately, reports may be made immediately to the
nearest Coast Guard unit. In any event such person in charge of the
vessel or facility shall notify the NRC as soon as possible.
(c) Any other person shall, as appropriate, notify the NRC of a
discharge of oil.
(d) Upon receipt of a notification of discharge, the NRC shall
promptly notify the OSC. The OSC shall ensure notification of the
appropriate state agency of any state which is, or may reasonably be
expected to be, affected by the discharge. The OSC shall then proceed
with the following phases as outlined in the RCP and ACP.
Sec. 300.305 Phase II--Preliminary assessment and initiation of action.
(a) The OSC is responsible for promptly initiating a preliminary
assessment.
(b) The preliminary assessment shall be conducted using available
information, supplemented where necessary and possible by an on-scene
inspection. The OSC shall undertake actions to:
(1) Evaluate the magnitude and severity of the discharge or threat
to public health or welfare of the United States or the environment;
(2) Assess the feasibility of removal; and
(3) To the extent practicable, identify potentially responsible
parties.
(c) Where practicable, the framework for the response management
structure is a system (e.g., a unified command system), that brings
together the functions of the federal government, the state government,
and the responsible party to achieve an effective and efficient
response, where the OSC maintains authority.
(d) Except in a case when the OSC is required to direct the response
to a discharge that may pose a substantial threat to the public health
or welfare of the United States (including but not limited to fish,
shellfish, wildlife, other natural resources, and the public and private
beaches and shorelines of the United States), the OSC may allow the
responsible party to voluntarily and promptly perform removal actions,
provided the OSC determines such actions will ensure an effective and
immediate removal of the discharge or mitigation or prevention of a
substantial threat of a discharge. If the responsible party does conduct
the removal, the OSC shall ensure adequate surveillance over whatever
actions are initiated. If effective actions are not being taken to
eliminate the threat, or if removal is not being properly done, the OSC
should, to the extent practicable under the circumstances, so advise the
responsible party. If the responsible party does not respond properly
the OSC shall take appropriate response actions and should notify the
responsible party of the potential liability for federal response costs
incurred by the OSC pursuant to the OPA and CWA. Where practicable,
continuing efforts should be made to encourage response by responsible
parties.
(1) In carrying out a response under this section, the OSC may:
(i) Remove or arrange for the removal of a discharge, and mitigate
or prevent a substantial threat of a discharge, at any time;
(ii) Direct or monitor all federal, state, and private actions to
remove a discharge; and
(iii) Remove and, if necessary, destroy a vessel discharging, or
threatening to discharge, by whatever means are available.
(2) If the discharge results in a substantial threat to the public
health or welfare of the United States (including, but not limited to
fish, shellfish, wildlife, other natural resources, and the public and
private beaches and shorelines of the United States), the OSC must
direct all response efforts, as provided in Sec. 300.322(b) of this
part. The OSC should declare as expeditiously as practicable to spill
response participants that the federal government will
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direct the response. The OSC may act without regard to any other
provision of the law governing contracting procedures or employment of
personnel by the federal government in removing or arranging for the
removal of such a discharge.
(e) The OSC shall ensure that the natural resource trustees are
promptly notified in the event of any discharge of oil, to the maximum
extent practicable as provided in the Fish and Wildlife and Sensitive
Environments Plan annex to the ACP for the area in which the discharge
occurs. The OSC and the trustees shall coordinate assessments,
evaluations, investigations, and planning with respect to appropriate
removal actions. The OSC shall consult with the affected trustees on the
appropriate removal action to be taken. The trustees will provide timely
advice concerning recommended actions with regard to trustee resources
potentially affected. The trustees also will assure that the OSC is
informed of their activities in natural resource damage assessment that
may affect response operations. The trustees shall assure, through the
lead administrative trustee, that all data from the natural resource
damage assessment activities that may support more effective operational
decisions are provided in a timely manner to the OSC. When circumstances
permit, the OSC shall share the use of non-monetary response resources
(i.e., personnel and equipment) with the trustees, provided trustee
activities do not interfere with response actions. The lead
administrative trustee facilitates effective and efficient communication
between the OSC and the other trustees during response operations and is
responsible for applying to the OSC for non-monetary federal response
resources on behalf of all trustees. The lead administrative trustee is
also responsible for applying to the NPFC for funding for initiation of
damage assessment for injuries to natural resources.
Sec. 300.310 Phase III--Containment, countermeasures, cleanup,
and disposal.
(a) Defensive actions shall begin as soon as possible to prevent,
minimize, or mitigate threat(s) to the public health or welfare of the
United States or the environment. Actions may include but are not
limited to: Analyzing water samples to determine the source and spread
of the oil; controlling the source of discharge; measuring and sampling;
source and spread control or salvage operations; placement of physical
barriers to deter the spread of the oil and to protect natural resources
and sensitive ecosystems; control of the water discharged from upstream
impoundment; and the use of chemicals and other materials in accordance
with subpart J of this part to restrain the spread of the oil and
mitigate its effects. The ACP prepared under Sec. 300.210(c) should be
consulted for procedures to be followed for obtaining an expedited
decision regarding the use of dispersants and other products listed on
the NCP Product Schedule.
(b) As appropriate, actions shall be taken to recover the oil or
mitigate its effects. Of the numerous chemical or physical methods that
may be used, the chosen methods shall be the most consistent with
protecting public health and welfare and the environment. Sinking agents
shall not be used.
(c) Oil and contaminated materials recovered in cleanup operations
shall be disposed of in accordance with the RCP, ACP, and any applicable
laws, regulations, or requirements. RRT and Area Committee guidelines
may identify the disposal options available during an oil spill response
and may describe what disposal requirements are mandatory or may not be
waived by the OSC. ACP guidelines should address: the sampling, testing,
and classifying of recovered oil and oiled debris; the segregation,
temporary storage, and stockpiling of recovered oil and oiled debris;
prior state disposal approvals and permits; and the routes; methods
(e.g. recycle/reuse, on-site burning, incineration, landfilling, etc.);
and sites for the disposal of collected oil, oiled debris, and animal
carcasses; and procedures for obtaining waivers, exemptions, or
authorizations associated with handling or transporting waste materials.
The ACPs may identify a hierarchy of preferences for disposal
alternatives, with recycling (reprocessing) being the most preferred,
and other alternatives preferred based
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on priorities for health or the environment.
Sec. 300.315 Phase IV--Documentation and cost recovery.
(a) All OSLTF users need to collect and maintain documentation to
support all actions taken under the CWA. In general, documentation shall
be sufficient to support full cost recovery for resources utilized and
shall identify the source and circumstances of the incident, the
responsible party or parties, and impacts and potential impacts to
public health and welfare and the environment. Documentation procedures
are contained in 33 CFR part 136.
(b) When appropriate, documentation shall also be collected for
scientific understanding of the environment and for research and
development of improved response methods and technology. Funding for
these actions is restricted by section 6002 of the OPA.
(c) OSCs shall submit OSC reports to the NRT or RRT, only if
requested, as provided by Sec. 300.165.
(d) OSCs shall ensure the necessary collection and safeguarding of
information, samples, and reports. Samples and information shall be
gathered expeditiously during the response to ensure an accurate record
of the impacts incurred. Documentation materials shall be made available
to the trustees of affected natural resources. The OSC shall make
available to trustees of the affected natural resources information and
documentation in the OSC's possession that can assist the trustees in
the determination of actual or potential natural resource injuries.
(e) Information and reports obtained by the EPA or USCG OSC shall be
transmitted to the appropriate offices responsible for follow-up
actions.
Sec. 300.317 National response priorities.
(a) Safety of human life must be given the top priority during every
response action. This includes any search and rescue efforts in the
general proximity of the discharge and the insurance of safety of
response personnel.
(b) Stabilizing the situation to preclude the event from worsening
is the next priority. All efforts must be focused on saving a vessel
that has been involved in a grounding, collision, fire, or explosion, so
that it does not compound the problem. Comparable measures should be
taken to stabilize a situation involving a facility, pipeline, or other
source of pollution. Stabilizing the situation includes securing the
source of the spill and/or removing the remaining oil from the container
(vessel, tank, or pipeline) to prevent additional oil spillage, to
reduce the need for follow-up response action, and to minimize adverse
impact to the environment.
(c) The response must use all necessary containment and removal
tactics in a coordinated manner to ensure a timely, effective response
that minimizes adverse impact to the environment.
(d) All parts of this national response strategy should be addressed
concurrently, but safety and stabilization are the highest priorities.
The OSC should not delay containment and removal decisions unnecessarily
and should take actions to minimize adverse impact to the environment
that begins as soon as a discharge occurs, as well as actions to
minimize further adverse environmental impact from additional
discharges.
(e) The priorities set forth in this section are broad in nature,
and should not be interpreted to preclude the consideration of other
priorities that may arise on a site-specific basis.
Sec. 300.320 General pattern of response.
(a) When the OSC receives a report of a discharge, actions normally
should be taken in the following sequence:
(1) Investigate the report to determine pertinent information such
as the threat posed to public health or welfare of the United States or
the environment, the type and quantity of polluting material, and the
source of the discharge.
(2) Officially classify the size (i.e., minor, medium, major) and
type (i.e., substantial threat to the public health or welfare of the
United States, worst case discharge) of the discharge and determine the
course of action to be followed to ensure effective and immediate
removal, mitigation, or prevention of the discharge. Some discharges
that are classified as a substantial threat to the public health or
welfare
[[Page 55]]
of the United States may be further classified as a spill of national
significance by the Administrator of EPA or the Commandant of the USCG.
The appropriate course of action may be prescribed in Sec. Sec.
300.322, 300.323, and 300.324.
(i) When the reported discharge is an actual or potential major
discharge, the OSC shall immediately notify the RRT and the NRC.
(ii) When the investigation shows that an actual or potential medium
discharge exists, the OSC shall recommend activation of the RRT, if
appropriate.
(iii) When the investigation shows that an actual or potential minor
discharge exists, the OSC shall monitor the situation to ensure that
proper removal action is being taken.
(3) If the OSC determines that effective and immediate removal,
mitigation, or prevention of a discharge can be achieved by private
party efforts, and where the discharge does not pose a substantial
threat to the public health or welfare of the United States, determine
whether the responsible party or other person is properly carrying out
removal. Removal is being done properly when:
(i) The responsible party is applying the resources called for in
its response plan to effectively and immediately remove, minimize, or
mitigate threat(s) to public health and welfare and the environment; and
(ii) The removal efforts are in accordance with applicable
regulations, including the NCP. Even if the OSC supplements responsible
party resources with government resources, the spill response will not
be considered improper, unless specifically determined by the OSC.
(4) Where appropriate, determine whether a state or political
subdivision thereof has the capability to carry out any or all removal
actions. If so, the OSC may arrange funding to support these actions.
(5) Ensure prompt notification of the trustees of affected natural
resources in accordance with the applicable RCP and ACP.
(b) Removal shall be considered complete when so determined by the
OSC in consultation with the Governor or Governors of the affected
states. When the OSC considers removal complete, OSLTF removal funding
shall end. This determination shall not preclude additional removal
actions under applicable state law.
Sec. 300.322 Response to substantial threats to public health or
welfare of the United States.
(a) As part of the investigation described in Sec. 300.320, the OSC
shall determine whether a discharge results in a substantial threat to
public health or welfare of the United States (including, but not
limited to, fish, shellfish, wildlife, other natural resources, and the
public and private beaches and shorelines of the United States). Factors
to be considered by the OSC in making this determination include, but
are not limited to, the size of the discharge, the character of the
discharge, and the nature of the threat to public health or welfare of
the United States. Upon obtaining such information, the OSC shall
conduct an evaluation of the threat posed, based on the OSC's experience
in assessing other discharges, and consultation with senior lead agency
officials and readily available authorities on issues outside the OSC's
technical expertise.
(b) If the investigation by the OSC shows that the discharge poses
or may present a substantial threat to public health or welfare of the
United States, the OSC shall direct all federal, state, or private
actions to remove the discharge or to mitigate or prevent the threat of
such a discharge, as appropriate. In directing the response in such
cases, the OSC may act without regard to any other provision of law
governing contracting procedures or employment of personnel by the
federal government to:
(1) Remove or arrange for the removal of the discharge;
(2) Mitigate or prevent the substantial threat of the discharge; and
(3) Remove and, if necessary, destroy a vessel discharging, or
threatening to discharge, by whatever means are available.
(c) In the case of a substantial threat to public health or welfare
of the United States, the OSC shall:
[[Page 56]]
(1) Assess opportunities for the use of various special teams and
other assistance described in Sec. 300.145, including the use of the
services of the NSFCC, as appropriate;
(2) Request immediate activation of the RRT; and
(3) Take whatever additional response actions are deemed
appropriate, including, but not limited to, implementation of the ACP as
required by section 311(j)(4) of the CWA or relevant tank vessel or
facility response plan required by section 311(j)(5) of the CWA. When
requested by the OSC, the lead agency or RRT shall dispatch appropriate
personnel to the scene of the discharge to assist the OSC. This
assistance may include technical support in the agency's areas of
expertise and disseminating information to the public. The lead agency
shall ensure that a contracting officer is available on scene, at the
request of the OSC.
Sec. 300.323 Spills of national significance.
(a) A discharge may be classified as a spill of national
significance (SONS) by the Administrator of EPA for discharges occurring
in the inland zone and the Commandant of the USCG for discharges
occurring in the coastal zone.
(b) For a SONS in the inland zone, the EPA Administrator may name a
senior Agency official to assist the OSC in communicating with affected
parties and the public and coordinating federal, state, local, and
international resources at the national level. This strategic
coordination will involve, as appropriate, the NRT, RRT(s), the
Governor(s) of affected state(s), and the mayor(s) or other chief
executive(s) of local government(s).
(c) For a SONS in the coastal zone, the USCG Commandant may name a
National Incident Commander (NIC) who will assume the role of the OSC in
communicating with affected parties and the public, and coordinating
federal, state, local, and international resources at the national
level. This strategic coordination will involve, as appropriate, the
NRT, RRT(s), the Governor(s) of affected state(s), and the mayor(s) or
other chief executive(s) of local government(s).
Sec. 300.324 Response to worst case discharges.
(a) If the investigation by the OSC shows that a discharge is a
worst case discharge as defined in the ACP, or there is a substantial
threat of such a discharge, the OSC shall:
(1) Notify the NSFCC;
(2) Require, where applicable, implementation of the worst case
portion of an approved tank vessel or facility response plan required by
section 311(j)(5) of the CWA;
(3) Implement the worst case portion of the ACP required by section
311(j)(4) of the CWA; and
(4) Take whatever additional response actions are deemed
appropriate.
(b) Under the direction of the OSC, the NSFCC shall coordinate use
of private and public personnel and equipment, including strike teams,
to remove a worst case discharge and mitigate or prevent a substantial
threat of such a discharge.
Sec. 300.335 Funding.
(a) The OSLTF is available under certain circumstances to fund
removal of oil performed under section 311 of the CWA. Those
circumstances and the procedures for accessing the OSLTF are described
in 33 CFR part 136. The responsible party is liable for costs of federal
removal and damages in accordance with section 311(f) of the CWA,
section 1002 of the OPA, and other federal laws.
(b) Where the OSC requests assistance from a federal agency, that
agency may be reimbursed in accordance with the provisions of 33 CFR
part 136. Specific interagency reimbursement agreements may be used when
necessary to ensure that the federal resources will be available for a
timely response to a discharge of oil.
(c) Procedures for funding the initiation of natural resource damage
assessment are covered in 33 CFR part 136.
(d) Response actions other than removal, such as scientific
investigations not in support of removal actions or law enforcement,
shall be provided by the agency with legal responsibility for those
specific actions.
[[Page 57]]
(e) The funding of a response to a discharge from a federally owned,
operated, or supervised facility or vessel is the responsibility of the
owning, operating, or supervising agency if it is a responsible party.
(f) The following agencies have funds available for certain
discharge removal actions:
(1) DOD has two specific sources of funds that may be applicable to
an oil discharge under appropriate circumstances. This does not consider
military resources that might be made available under specific
conditions.
(i) Funds required for removal of a sunken vessel or similar
obstruction of navigation are available to the Corps of Engineers
through Civil Works Appropriations, Operations and Maintenance, General.
(ii) USN may conduct salvage operations contingent on defense
operational commitments, when funded by the requesting agency. Such
funding may be requested on a direct cite basis.
(2) Pursuant to Title I of the OPA, the state or states affected by
a discharge of oil may act where necessary to remove such discharge.
Pursuant to 33 CFR part 136 states may be reimbursed from the OSLTF for
the reasonable costs incurred in such a removal.
Subpart E_Hazardous Substance Response
Source: 55 FR 8839, Mar. 8, 1990, unless otherwise noted.
Sec. 300.400 General.
(a) This subpart establishes methods and criteria for determining
the appropriate extent of response authorized by CERCLA and CWA section
311(c):
(1) When there is a release of a hazardous substance into the
environment; or
(2) When there is a release into the environment of any pollutant or
contaminant that may present an imminent and substantial danger to the
public health or welfare of the United States.
(b) Limitations on response. Unless the lead agency determines that
a release constitutes a public health or environmental emergency and no
other person with the authority and capability to respond will do so in
a timely manner, a removal or remedial action under section 104 of
CERCLA shall not be undertaken in response to a release:
(1) Of a naturally occurring substance in its unaltered form, or
altered solely through naturally occurring processes or phenomena, from
a location where it is naturally found;
(2) From products that are part of the structure of, and result in
exposure within, residential buildings or business or community
structures; or
(3) Into public or private drinking water supplies due to
deterioration of the system through ordinary use.
(c) Fund-financed action. In determining the need for and in
planning or undertaking Fund-financed action, the lead agency shall, to
the extent practicable:
(1) Engage in prompt response;
(2) Provide for state participation in response actions, as
described in subpart F of this part;
(3) Conserve Fund monies by encouraging private party response;
(4) Be sensitive to local community concerns;
(5) Consider using treatment technologies;
(6) Involve the Regional Response Team (RRT) in both removal and
remedial response actions at appropriate decision-making stages;
(7) Encourage the involvement and sharing of technology by industry
and other experts; and
(8) Encourage the involvement of organizations to coordinate
responsible party actions, foster site response, and provide technical
advice to the public, federal and state governments, and industry.
(d) Entry and access. (1) For purposes of determining the need for
response, or choosing or taking a response action, or otherwise
enforcing the provisions of CERCLA, EPA, or the appropriate federal
agency, and a state or political subdivision operating pursuant to a
contract or cooperative agreement under CERCLA section 104(d)(1), has
the authority to enter any vessel, facility, establishment or other
place, property, or location described in paragraph (d)(2) of this
section and conduct, complete, operate, and maintain any
[[Page 58]]
response actions authorized by CERCLA or these regulations.
(2)(i) Under the authorities described in paragraph (d)(1) of this
section, EPA, or the appropriate federal agency, and a state or
political subdivision operating pursuant to a contract or cooperative
agreement under CERCLA section 104(d)(1), may enter:
(A) Any vessel, facility, establishment, or other place or property
where any hazardous substance or pollutant or contaminant may be or has
been generated, stored, treated, disposed of, or transported from;
(B) Any vessel, facility, establishment, or other place or property
from which, or to which, a hazardous substance or pollutant or
contaminant has been, or may have been, released or where such release
is or may be threatened;
(C) Any vessel, facility, establishment, or other place or property
where entry is necessary to determine the need for response or the
appropriate response or to effectuate a response action; or
(D) Any vessel, facility, establishment, or other place, property,
or location adjacent to those vessels, facilities, establishments,
places, or properties described in paragraphs (d)(2)(i)(A), (B), or (C)
of this section.
(ii) Once a determination has been made that there is a reasonable
basis to believe that there has been or may be a release, EPA, or the
appropriate federal agency, and a state or political subdivision
operating pursuant to a contract or cooperative agreement under CERCLA
section 104(d)(1), is authorized to enter all vessels, facilities,
establishments, places, properties, or locations specified in paragraph
(d)(2)(i) of this section, at which the release is believed to be, and
all other vessels, facilities, establishments, places, properties, or
locations identified in paragraph (d)(2)(i) of this section that are
related to the response or are necessary to enter in responding to that
release.
(3) The lead agency may designate as its representative solely for
the purpose of access, among others, one or more potentially responsible
parties, including representatives, employees, agents, and contractors
of such parties. EPA, or the appropriate federal agency, may exercise
the authority contained in section 104(e) of CERCLA to obtain access for
its designated representative. A potentially responsible party may only
be designated as a representative of the lead agency where that
potentially responsible party has agreed to conduct response activities
pursuant to an administrative order or consent decree.
(4)(i) If consent is not granted under the authorities described in
paragraph (d)(1) of this section, or if consent is conditioned in any
manner, EPA, or the appropriate federal agency, may issue an order
pursuant to section 104(e)(5) of CERCLA directing compliance with the
request for access made under Sec. 300.400(d)(1). EPA or the
appropriate federal agency may ask the Attorney General to commence a
civil action to compel compliance with either a request for access or an
order directing compliance.
(ii) EPA reserves the right to proceed, where appropriate, under
applicable authority other than CERCLA section 104(e).
(iii) The administrative order may direct compliance with a request
to enter or inspect any vessel, facility, establishment, place,
property, or location described in paragraph (d)(2) of this section.
(iv) Each order shall contain:
(A) A determination by EPA, or the appropriate federal agency, that
it is reasonable to believe that there may be or has been a release or
threat of a release of a hazardous substance or pollutant or contaminant
and a statement of the facts upon which the determination is based;
(B) A description, in light of CERCLA response authorities, of the
purpose and estimated scope and duration of the entry, including a
description of the specific anticipated activities to be conducted
pursuant to the order;
(C) A provision advising the person who failed to consent that an
officer or employee of the agency that issued the order will be
available to confer with respondent prior to effective date of the
order; and
(D) A provision advising the person who failed to consent that a
court may impose a penalty of up to $25,000 per
[[Page 59]]
day for unreasonable failure to comply with the order.
(v) Orders shall be served upon the person or responsible party who
failed to consent prior to their effective date. Force shall not be used
to compel compliance with an order.
(vi) Orders may not be issued for any criminal investigations.
(e) Permit requirements. (1) No federal, state, or local permits are
required for on-site response actions conducted pursuant to CERCLA
sections 104, 106, 120, 121, or 122. The term on-site means the areal
extent of contamination and all suitable areas in very close proximity
to the contamination necessary for implementation of the response
action.
(2) Permits, if required, shall be obtained for all response
activities conducted off-site.
(f) Health assessments. Health assessments shall be performed by
ATSDR at facilities on or proposed to be listed on the NPL and may be
performed at other releases or facilities in response to petitions made
to ATSDR. Where available, these health assessments may be used by the
lead agency to assist in determining whether response actions should be
taken and/or to identify the need for additional studies to assist in
the assessment of potential human health effects associated with
releases or potential releases of hazardous substances.
(g) Identification of applicable or relevant and appropriate
requirements. (1) The lead and support agencies shall identify
requirements applicable to the release or remedial action contemplated
based upon an objective determination of whether the requirement
specifically addresses a hazardous substance, pollutant, contaminant,
remedial action, location, or other circumstance found at a CERCLA site.
(2) If, based upon paragraph (g)(1) of this section, it is
determined that a requirement is not applicable to a specific release,
the requirement may still be relevant and appropriate to the
circumstances of the release. In evaluating relevance and
appropriateness, the factors in paragraphs (g)(2)(i) through (viii) of
this section shall be examined, where pertinent, to determine whether a
requirement addresses problems or situations sufficiently similar to the
circumstances of the release or remedial action contemplated, and
whether the requirement is well-suited to the site, and therefore is
both relevant and appropriate. The pertinence of each of the following
factors will depend, in part, on whether a requirement addresses a
chemical, location, or action. The following comparisons shall be made,
where pertinent, to determine relevance and appropriateness:
(i) The purpose of the requirement and the purpose of the CERCLA
action;
(ii) The medium regulated or affected by the requirement and the
medium contaminated or affected at the CERCLA site;
(iii) The substances regulated by the requirement and the substances
found at the CERCLA site;
(iv) The actions or activities regulated by the requirement and the
remedial action contemplated at the CERCLA site;
(v) Any variances, waivers, or exemptions of the requirement and
their availability for the circumstances at the CERCLA site;
(vi) The type of place regulated and the type of place affected by
the release or CERCLA action;
(vii) The type and size of structure or facility regulated and the
type and size of structure or facility affected by the release or
contemplated by the CERCLA action;
(viii) Any consideration of use or potential use of affected
resources in the requirement and the use or potential use of the
affected resource at the CERCLA site.
(3) In addition to applicable or relevant and appropriate
requirements, the lead and support agencies may, as appropriate,
identify other advisories, criteria, or guidance to be considered for a
particular release. The ``to be considered'' (TBC) category consists of
advisories, criteria, or guidance that were developed by EPA, other
federal agencies, or states that may be useful in developing CERCLA
remedies.
(4) Only those state standards that are promulgated, are identified
by the state in a timely manner, and are more stringent than federal
requirements
[[Page 60]]
may be applicable or relevant and appropriate. For purposes of
identification and notification of promulgated state standards, the term
promulgated means that the standards are of general applicability and
are legally enforceable.
(5) The lead agency and support agency shall identify their specific
requirements that are applicable or relevant and appropriate for a
particular site. These agencies shall notify each other, in a timely
manner as described in Sec. 300.515(d), of the requirements they have
determined to be applicable or relevant and appropriate. When
identifying a requirement as an ARAR, the lead agency and support agency
shall include a citation to the statute or regulation from which the
requirement is derived.
(6) Notification of ARARs shall be according to procedures and
timeframes specified in Sec. 300.515 (d)(2) and (h)(2).
(h) Oversight. The lead agency may provide oversight for actions
taken by potentially responsible parties to ensure that a response is
conducted consistent with this part. The lead agency may also monitor
the actions of third parties preauthorized under subpart H of this part.
EPA will provide oversight when the response is pursuant to an EPA order
or federal consent decree.
(i) Other. (1) This subpart does not establish any preconditions to
enforcement action by either the federal or state governments to compel
response actions by potentially responsible parties.
(2) While much of this subpart is oriented toward federally funded
response actions, this subpart may be used as guidance concerning
methods and criteria for response actions by other parties under other
funding mechanisms. Except as provided in subpart H of this part,
nothing in this part is intended to limit the rights of any person to
seek recovery of response costs from responsible parties pursuant to
CERCLA section 107.
(3) Activities by the federal and state governments in implementing
this subpart are discretionary governmental functions. This subpart does
not create in any private party a right to federal response or
enforcement action. This subpart does not create any duty of the federal
government to take any response action at any particular time.
[55 FR 8839, Mar. 8, 1990, as amended at 59 FR 47447, Sept. 15, 1994]
Sec. 300.405 Discovery or notification.
(a) A release may be discovered through:
(1) A report submitted in accordance with section 103(a) of CERCLA,
i.e., reportable quantities codified at 40 CFR part 302;
(2) A report submitted to EPA in accordance with section 103(c) of
CERCLA;
(3) Investigation by government authorities conducted in accordance
with section 104(e) of CERCLA or other statutory authority;
(4) Notification of a release by a federal or state permit holder
when required by its permit;
(5) Inventory or survey efforts or random or incidental observation
reported by government agencies or the public;
(6) Submission of a citizen petition to EPA or the appropriate
federal facility requesting a preliminary assessment, in accordance with
section 105(d) of CERCLA;
(7) A report submitted in accordance with section 311(b)(5) of the
CWA; and
(8) Other sources.
(b) Any person in charge of a vessel or a facility shall report
releases as described in paragraph (a)(1) of this section to the
National Response Center (NRC). If direct reporting to the NRC is not
practicable, reports may be made to the United States Coast Guard (USCG)
on-scene coordinator (OSC) for the geographic area where the release
occurs. The EPA predesignated OSC may also be contacted through the
regional 24-hour emergency response telephone number. All such reports
shall be promptly relayed to the NRC. If it is not possible to notify
the NRC or predesignated OSC immediately, reports may be made
immediately to the nearest USCG unit. In any event, such person in
charge of the vessel or facility shall notify the NRC as soon as
possible.
(c) All other reports of releases described under paragraph (a) of
this section, except releases reported under paragraphs (a)(2) and (6)
of this section,
[[Page 61]]
shall, as appropriate, be made to the NRC.
(d) The NRC will generally need information that will help to
characterize the release. This will include, but not be limited to:
Location of the release; type(s) of material(s) released; an estimate of
the quantity of material released; possible source of the release; and
date and time of the release. Reporting under paragraphs (b) and (c) of
this section shall not be delayed due to incomplete notification
information.
(e) Upon receipt of a notification of a release, the NRC shall
promptly notify the appropriate OSC. The OSC shall notify the Governor,
or designee, of the state affected by the release.
(f)(1) When the OSC is notified of a release that may require
response pursuant to Sec. 300.415(b), a removal site evaluation shall,
as appropriate, be promptly undertaken pursuant to Sec. 300.410.
(2) When notification indicates that removal action pursuant to
Sec. 300.415(b) is not required, a remedial site evaluation shall, if
appropriate, be undertaken by the lead agency pursuant to Sec. 300.420,
if one has not already been performed.
(3) If radioactive substances are present in a release, the EPA
Radiological Response Coordinator should be notified for evaluation and
assistance either directly or via the NRC, consistent with Sec. Sec.
300.130(e) and 300.145(f).
(g) Release notification made to the NRC under this section does not
relieve the owner/operator of a facility from any obligations to which
it is subject under SARA Title III or state law. In particular, it does
not relieve the owner/operator from the requirements of section 304 of
SARA Title III and 40 CFR part 355 and Sec. 300.215(f) of this part for
notifying the community emergency coordinator for the appropriate local
emergency planning committee of all affected areas and the state
emergency response commission of any state affected that there has been
a release. Federal agencies are not legally obligated to comply with the
requirements of Title III of SARA.
[55 FR 8839, Mar. 8, 1990, as amended at 59 FR 47447, Sept. 15, 1994]
Sec. 300.410 Removal site evaluation.
(a) A removal site evaluation includes a removal preliminary
assessment and, if warranted, a removal site inspection.
(b) A removal site evaluation of a release identified for possible
CERCLA response pursuant to Sec. 300.415 shall, as appropriate, be
undertaken by the lead agency as promptly as possible. The lead agency
may perform a removal preliminary assessment in response to petitions
submitted by a person who is, or may be, affected by a release of a
hazardous substance, pollutant, or contaminant pursuant to Sec.
300.420(b)(5).
(c)(1) The lead agency shall, as appropriate, base the removal
preliminary assessment on readily available information. A removal
preliminary assessment may include, but is not limited to:
(i) Identification of the source and nature of the release or threat
of release;
(ii) Evaluation by ATSDR or by other sources, for example, state
public health agencies, of the threat to public health;
(iii) Evaluation of the magnitude of the threat;
(iv) Evaluation of factors necessary to make the determination of
whether a removal is necessary; and
(v) Determination of whether a nonfederal party is undertaking
proper response.
(2) A removal preliminary assessment of releases from hazardous
waste management facilities may include collection or review of data
such as site management practices, information from generators,
photographs, analysis of historical photographs, literature searches,
and personal interviews conducted, as appropriate.
(d) A removal site inspection may be performed if more information
is needed. Such inspection may include a perimeter (i.e., off-site) or
on-site inspection, taking into consideration whether such inspection
can be performed safely.
(e)(1) As part of the evaluation under this section, the OSC shall
determine whether a release governed by CWA section 311(c)(1), as
amended by OPA section 4201(a), has occurred.
[[Page 62]]
(2) If such a release of a CWA hazardous substance has occurred, the
OSC shall determine whether the release results in a substantial threat
to the public health or welfare of the United States. Factors to be
considered by the OSC in making this determination include, but are not
limited to, the size of the release, the character of the release, and
the nature of the threat to public health or welfare of the United
States. Upon obtaining relevant elements of such information, the OSC
shall conduct an evaluation of the threat posed, based on the OSC's
experience in assessing other releases, and consultation with senior
lead agency officials and readily available authorities on issues
outside the OSC's technical expertise.
(f) A removal site evaluation shall be terminated when the OSC or
lead agency determines:
(1) There is no release;
(2) The source is neither a vessel nor a facility as defined in
Sec. 300.5 of the NCP;
(3) The release involves neither a hazardous substance, nor a
pollutant or contaminant that may present an imminent and substantial
danger to public health or welfare of the United States;
(4) The release consists of a situation specified in Sec.
300.400(b)(1) through (3) subject to limitations on response;
(5) The amount, quantity, or concentration released does not warrant
federal response;
(6) A party responsible for the release, or any other person, is
providing appropriate response, and on-scene monitoring by the
government is not required; or
(7) The removal site evaluation is completed.
(g) The results of the removal site evaluation shall be documented.
(h) The OSC or lead agency shall ensure that natural resource
trustees are promptly notified in order that they may initiate
appropriate actions, including those identified in subpart G of this
part. The OSC or lead agency shall coordinate all response activities
with such affected trustees.
(i) If the removal site evaluation indicates that removal action
under Sec. 300.415 is not required, but that remedial action under
Sec. 300.430 may be necessary, the lead agency shall, as appropriate,
initiate a remedial site evaluation pursuant to Sec. 300.420.
[59 FR 47448, Sept. 15, 1994]
Sec. 300.415 Removal action.
(a)(1) In determining the appropriate extent of action to be taken
in response to a given release, the lead agency shall first review the
removal site evaluation, any information produced through a remedial
site evaluation, if any has been done previously, and the current site
conditions, to determine if removal action is appropriate.
(2) Where the responsible parties are known, an effort initially
shall be made, to the extent practicable, to determine whether they can
and will perform the necessary removal action promptly and properly.
(3) This section does not apply to removal actions taken pursuant to
section 104(b) of CERCLA. The criteria for such actions are set forth in
section 104(b) of CERCLA.
(b)(1) At any release, regardless of whether the site is included on
the National Priorities List (NPL), where the lead agency makes the
determination, based on the factors in paragraph (b)(2) of this section,
that there is a threat to public health or welfare of the United States
or the environment, the lead agency may take any appropriate removal
action to abate, prevent, minimize, stabilize, mitigate, or eliminate
the release or the threat of release.
(2) The following factors shall be considered in determining the
appropriateness of a removal action pursuant to this section:
(i) Actual or potential exposure to nearby human populations,
animals, or the food chain from hazardous substances or pollutants or
contaminants;
(ii) Actual or potential contamination of drinking water supplies or
sensitive ecosystems;
(iii) Hazardous substances or pollutants or contaminants in drums,
barrels, tanks, or other bulk storage containers, that may pose a threat
of release;
(iv) High levels of hazardous substances or pollutants or
contaminants
[[Page 63]]
in soils largely at or near the surface, that may migrate;
(v) Weather conditions that may cause hazardous substances or
pollutants or contaminants to migrate or be released;
(vi) Threat of fire or explosion;
(vii) The availability of other appropriate federal or state
response mechanisms to respond to the release; and
(viii) Other situations or factors that may pose threats to public
health or welfare of the United States or the environment.
(3) If the lead agency determines that a removal action is
appropriate, actions shall, as appropriate, begin as soon as possible to
abate, prevent, minimize, stabilize, mitigate, or eliminate the threat
to public health or welfare of the United States or the environment. The
lead agency shall, at the earliest possible time, also make any
necessary determinations pursuant to paragraph (b)(4) of this section.
(4) Whenever a planning period of at least six months exists before
on-site activities must be initiated, and the lead agency determines,
based on a site evaluation, that a removal action is appropriate:
(i) The lead agency shall conduct an engineering evaluation/cost
analysis (EE/CA) or its equivalent. The EE/CA is an analysis of removal
alternatives for a site.
(ii) If environmental samples are to be collected, the lead agency
shall develop sampling and analysis plans that shall provide a process
for obtaining data of sufficient quality and quantity to satisfy data
needs. Sampling and analysis plans shall be reviewed and approved by
EPA. The sampling and analysis plans shall consist of two parts:
(A) The field sampling plan, which describes the number, type, and
location of samples and the type of analyses; and
(B) The quality assurance project plan, which describes policy,
organization, and functional activities and the data quality objectives
and measures necessary to achieve adequate data for use in planning and
documenting the removal action.
(5) CERCLA fund-financed removal actions, other than those
authorized under section 104(b) of CERCLA, shall be terminated after $2
million has been obligated for the action or 12 months have elapsed from
the date that removal activities begin on-site, unless the lead agency
determines that:
(i) There is an immediate risk to public health or welfare of the
United States or the environment; continued response actions are
immediately required to prevent, limit, or mitigate an emergency; and
such assistance will not otherwise be provided on a timely basis; or
(ii) Continued response action is otherwise appropriate and
consistent with the remedial action to be taken.
(c)(1) In carrying out a response to a release of a CWA hazardous
substance, as described in CWA section 311(c)(1), as amended by OPA
section 4201(a), the OSC may:
(i) Remove or arrange for the removal of a release, and mitigate or
prevent a substantial threat of a release, at any time;
(ii) Direct or monitor all federal, state, and private actions to
remove a release; and
(iii) Remove and, if necessary, destroy a vessel releasing or
threatening to release CWA hazardous substances, by whatever means are
available.
(2) If the investigation by the OSC under Sec. 300.410 shows that
the release of a CWA hazardous substance results in a substantial threat
to public health or welfare of the United States, the OSC shall direct
all federal, state, or private actions to remove the release or to
mitigate or prevent the threat of such a release, as appropriate. In
directing the response, the OSC may act without regard to any other
provision of law governing contracting procedures or employment of
personnel by the federal government to:
(i) Remove or arrange for the removal of the release;
(ii) Mitigate or prevent the substantial threat of the release; and
(iii) Remove and, if necessary, destroy a vessel releasing, or
threatening to release, by whatever means are available.
(3) In the case of a release of a CWA hazardous substance posing a
substantial threat to public health or welfare of the United States, the
OSC shall:
[[Page 64]]
(i) Assess opportunities for the use of various special teams and
other assistance described in Sec. 300.145, as appropriate;
(ii) Request immediate activation of the RRT; and
(iii) Take whatever additional response actions are deemed
appropriate. When requested by the OSC, the lead agency or RRT shall
dispatch appropriate personnel to the scene of the release to assist the
OSC. This assistance may include technical support in the agency's areas
of expertise and disseminating information to the public in accordance
with Sec. 300.155. The lead agency shall ensure that a contracting
officer is available on-scene, at the request of the OSC.
(d) Removal actions shall, to the extent practicable, contribute to
the efficient performance of any anticipated long-term remedial action
with respect to the release concerned.
(e) The following removal actions are, as a general rule,
appropriate in the types of situations shown; however, this list is not
exhaustive and is not intended to prevent the lead agency from taking
any other actions deemed necessary under CERCLA, CWA section 311, or
other appropriate federal or state enforcement or response authorities,
and the list does not create a duty on the lead agency to take action at
any particular time:
(1) Fences, warning signs, or other security or site control
precautions--where humans or animals have access to the release;
(2) Drainage controls, for example, run-off or run-on diversion--
where needed to reduce migration of hazardous substances or pollutants
or contaminants off-site or to prevent precipitation or run-off from
other sources, for example, flooding, from entering the release area
from other areas;
(3) Stabilization of berms, dikes, or impoundments or drainage or
closing of lagoons--where needed to maintain the integrity of the
structures;
(4) Capping of contaminated soils or sludges--where needed to reduce
migration of hazardous substances or pollutants or contaminants into
soil, ground or surface water, or air;
(5) Using chemicals and other materials to retard the spread of the
release or to mitigate its effects--where the use of such chemicals will
reduce the spread of the release;
(6) Excavation, consolidation, or removal of highly contaminated
soils from drainage or other areas--where such actions will reduce the
spread of, or direct contact with, the contamination;
(7) Removal of drums, barrels, tanks, or other bulk containers that
contain or may contain hazardous substances or pollutants or
contaminants--where it will reduce the likelihood of spillage; leakage;
exposure to humans, animals, or food chain; or fire or explosion;
(8) Containment, treatment, disposal, or incineration of hazardous
materials--where needed to reduce the likelihood of human, animal, or
food chain exposure; or
(9) Provision of alternative water supply--where necessary
immediately to reduce exposure to contaminated household water and
continuing until such time as local authorities can satisfy the need for
a permanent remedy.
(f) Where necessary to protect public health or welfare, the lead
agency shall request that FEMA conduct a temporary relocation or that
state/local officials conduct an evacuation.
(g) If the lead agency determines that the removal action will not
fully address the threat posed by the release and the release may
require remedial action, the lead agency shall ensure an orderly
transition from removal to remedial response activities.
(h) CERCLA removal actions conducted by states under cooperative
agreements, described in subpart F of this part, shall comply with all
requirements of this section.
(i) Facilities operated by a state or political subdivision at the
time of disposal require a state cost share of at least 50 percent of
Fund-financed response costs if a Fund-financed remedial action is
conducted.
(j) Fund-financed removal actions under CERCLA section 104 and
removal actions pursuant to CERCLA section 106 shall, to the extent
practicable considering the exigencies of the situation, attain
applicable or relevant and appropriate requirements (ARARs) under
[[Page 65]]
federal environmental or state environmental or facility siting laws.
Waivers described in Sec. 300.430(f)(1)(ii)(C) may be used for removal
actions. Other federal and state advisories, criteria, or guidance may,
as appropriate, be considered in formulating the removal action (see
Sec. 300.400(g)(3)). In determining whether compliance with ARARs is
practicable, the lead agency may consider appropriate factors,
including:
(1) The urgency of the situation; and
(2) The scope of the removal action to be conducted.
(k) Removal actions pursuant to section 106 or 122 of CERCLA are not
subject to the following requirements of this section:
(1) Section 300.415(a)(2) requirement to locate responsible parties
and have them undertake the response;
(2) Section 300.415(b)(2)(vii) requirement to consider the
availability of other appropriate federal or state response and
enforcement mechanisms to respond to the release;
(3) Section 300.415(b)(5) requirement to terminate response after $2
million has been obligated or 12 months have elapsed from the date of
the initial response; and
(4) Section 300.415(g) requirement to assure an orderly transition
from removal to remedial action.
(l) To the extent practicable, provision for post-removal site
control following a CERCLA Fund-financed removal action at both NPL and
non-NPL sites is encouraged to be made prior to the initiation of the
removal action. Such post-removal site control includes actions
necessary to ensure the effectiveness and integrity of the removal
action after the completion of the on-site removal action or after the
$2 million or 12-month statutory limits are reached for sites that do
not meet the exemption criteria in paragraph (b)(5) of this section.
Post-removal site control may be conducted by:
(1) The affected state or political subdivision thereof or local
units of government for any removal;
(2) Potentially responsible parties; or
(3) EPA's remedial program for some federal-lead Fund-financed
responses at NPL sites.
(m) OSCs/RPMs conducting removal actions shall submit OSC reports to
the RRT as required by Sec. 300.165.
(n) Community relations in removal actions. (1) In the case of all
CERCLA removal actions taken pursuant to Sec. 300.415 or CERCLA
enforcement actions to compel removal response, a spokesperson shall be
designated by the lead agency. The spokesperson shall inform the
community of actions taken, respond to inquiries, and provide
information concerning the release. All news releases or statements made
by participating agencies shall be coordinated with the OSC/RPM. The
spokesperson shall notify, at a minimum, immediately affected citizens,
state and local officials, and, when appropriate, civil defense or
emergency management agencies.
(2) For CERCLA actions where, based on the site evaluation, the lead
agency determines that a removal is appropriate, and that less than six
months exists before on-site removal activity must begin, the lead
agency shall:
(i) Publish a notice of availability of the administrative record
file established pursuant to Sec. 300.820 in a major local newspaper of
general circulation or use one or more other mechanisms to give adequate
notice to a community within 60 days of initiation of on-site removal
activity;
(ii) Provide a public comment period, as appropriate, of not less
than 30 days from the time the administrative record file is made
available for public inspection, pursuant to Sec. 300.820(b)(2); and
(iii) Prepare a written response to significant comments pursuant to
Sec. 300.820(b)(3).
(3) For CERCLA removal actions where on-site action is expected to
extend beyond 120 days from the initiation of on-site removal
activities, the lead agency shall by the end of the 120-day period:
(i) Conduct interviews with local officials, community residents,
public interest groups, or other interested or affected parties, as
appropriate, to solicit their concerns, information needs, and how or
when citizens would like to be involved in the Superfund process;
[[Page 66]]
(ii) Prepare a formal community relations plan (CRP) based on the
community interviews and other relevant information, specifying the
community relations activities that the lead agency expects to undertake
during the response; and
(iii) Establish at least one local information repository at or near
the location of the response action. The information repository should
contain items made available for public information. Further, an
administrative record file established pursuant to subpart I for all
removal actions shall be available for public inspection in at least one
of the repositories. The lead agency shall inform the public of the
establishment of the information repository and provide notice of
availability of the administrative record file for public review. All
items in the repository shall be available for public inspection and
copying.
(4) Where, based on the site evaluation, the lead agency determines
that a CERCLA removal action is appropriate and that a planning period
of at least six months exists prior to initiation of the on-site removal
activities, the lead agency shall at a minimum:
(i) Comply with the requirements set forth in paragraphs (n)(3)(i),
(ii), and (iii) of this section, prior to the completion of the EE/CA,
or its equivalent, except that the information repository and the
administrative record file will be established no later than when the
EE/CA approval memorandum is signed;
(ii) Publish a notice of availability and brief description of the
EE/CA in a major local newspaper of general circulation or use one or
more other mechanisms to give adequate notice to a community pursuant to
Sec. 300.820;
(iii) Provide a reasonable opportunity, not less than 30 calendar
days, for submission of written and oral comments after completion of
the EE/CA pursuant to Sec. 300.820(a). Upon timely request, the lead
agency will extend the public comment period by a minimum of 15 days;
and
(iv) Prepare a written response to significant comments pursuant to
Sec. 300.820(a).
[59 FR 47448, Sept. 15, 1994, as amended at 80 FR 17706, Apr. 2, 2015]
Sec. 300.420 Remedial site evaluation.
(a) General. The purpose of this section is to describe the methods,
procedures, and criteria the lead agency shall use to collect data, as
required, and evaluate releases of hazardous substances, pollutants, or
contaminants. The evaluation may consist of two steps: a remedial
preliminary assessment (PA) and a remedial site inspection (SI).
(b) Remedial preliminary assessment. (1) The lead agency shall
perform a remedial PA on all sites entered into the SEMS remedial
assessment active inventory as defined in Sec. 300.5 to:
(i) Eliminate from further consideration those sites that pose no
threat to public health or the environment;
(ii) Determine if there is any potential need for removal action;
(iii) Set priorities for site inspections; and
(iv) Gather existing data to facilitate later evaluation of the
release pursuant to the Hazard Ranking System (HRS) if warranted.
(2) A remedial PA shall consist of a review of existing information
about a release such as information on the pathways of exposure,
exposure targets, and source and nature of release. A remedial PA shall
also include an off-site reconnaissance as appropriate. A remedial PA
may include an on-site reconnaissance where appropriate.
(3) If the remedial PA indicates that a removal action may be
warranted, the lead agency shall initiate removal evaluation pursuant to
Sec. 300.410.
(4) In performing a remedial PA, the lead agency may complete the
EPA Preliminary Assessment form, available from EPA regional offices, or
its equivalent, and shall prepare a PA report, which shall include:
(i) A description of the release;
(ii) A description of the probable nature of the release; and
(iii) A recommendation on whether further action is warranted, which
lead agency should conduct further action, and whether an SI or removal
action or both should be undertaken.
(5) Any person may petition the lead federal agency (EPA or the
appropriate federal agency in the case of a release or suspected release
from a federal facility), to perform a PA of a release
[[Page 67]]
when such person is, or may be, affected by a release of a hazardous
substance, pollutant, or contaminant. Such petitions shall be addressed
to the EPA Regional Administrator for the region in which the release is
located, except that petitions for PAs involving federal facilities
should be addressed to the head of the appropriate federal agency.
(i) Petitions shall be signed by the petitioner and shall contain
the following:
(A) The full name, address, and phone number of petitioner;
(B) A description, as precisely as possible, of the location of the
release; and
(C) How the petitioner is or may be affected by the release.
(ii) Petitions should also contain the following information to the
extent available:
(A) What type of substances were or may be released;
(B) The nature of activities that have occurred where the release is
located; and
(C) Whether local and state authorities have been contacted about
the release.
(iii) The lead federal agency shall complete a remedial or removal
PA within one year of the date of receipt of a complete petition
pursuant to paragraph (b)(5) of this section, if one has not been
performed previously, unless the lead federal agency determines that a
PA is not appropriate. Where such a determination is made, the lead
federal agency shall notify the petitioner and will provide a reason for
the determination.
(iv) When determining if performance of a PA is appropriate, the
lead federal agency shall take into consideration:
(A) Whether there is information indicating that a release has
occurred or there is a threat of a release of a hazardous substance,
pollutant, or contaminant; and
(B) Whether the release is eligible for response under CERCLA.
(c) Remedial site inspection. (1) The lead agency shall perform a
remedial SI as appropriate to:
(i) Eliminate from further consideration those releases that pose no
significant threat to public health or the environment;
(ii) Determine the potential need for removal action;
(iii) Collect or develop additional data, as appropriate, to
evaluate the release pursuant to the HRS; and
(iv) Collect data in addition to that required to score the release
pursuant to the HRS, as appropriate, to better characterize the release
for more effective and rapid initiation of the RI/FS or response under
other authorities.
(2) The remedial SI shall build upon the information collected in
the remedial PA. The remedial SI shall involve, as appropriate, both on-
and off-site field investigatory efforts, and sampling.
(3) If the remedial SI indicates that removal action may be
appropriate, the lead agency shall initiate removal site evaluation
pursuant to Sec. 300.410.
(4) Prior to conducting field sampling as part of site inspections,
the lead agency shall develop sampling and analysis plans that shall
provide a process for obtaining data of sufficient quality and quantity
to satisfy data needs. The sampling and analysis plans shall consist of
two parts:
(i) The field sampling plan, which describes the number, type, and
location of samples, and the type of analyses, and
(ii) The quality assurance project plan (QAPP), which describes
policy, organization, and functional activities, and the data quality
objectives and measures necessary to achieve adequate data for use in
site evaluation and hazard ranking system activities.
(5) Upon completion of a remedial SI, the lead agency shall prepare
a report that includes the following:
(i) A description/history/nature of waste handling;
(ii) A description of known contaminants;
(iii) A description of pathways of migration of contaminants;
(iv) An identification and description of human and environmental
targets; and
(v) A recommendation on whether further action is warranted.
[55 FR 8839, Mar. 8, 1990, as amended at 79 FR 65592, Nov. 5, 2014]
[[Page 68]]
Sec. 300.425 Establishing remedial priorities.
(a) General. The purpose of this section is to identify the criteria
as well as the methods and procedures EPA uses to establish its
priorities for remedial actions.
(b) National Priorities List. The NPL is the list of priority
releases for long-term remedial evaluation and response.
(1) Only those releases included on the NPL shall be considered
eligible for Fund-financed remedial action. Removal actions (including
remedial planning activities, RI/FSs, and other actions taken pursuant
to CERCLA section 104(b)) are not limited to NPL sites.
(2) Inclusion of a release on the NPL does not imply that monies
will be expended, nor does the rank of a release on the NPL establish
the precise priorities for the allocation of Fund resources. EPA may
also pursue other appropriate authorities to remedy the release,
including enforcement actions under CERCLA and other laws. A site's rank
on the NPL serves, along with other factors, including enforcement
actions, as a basis to guide the allocation of Fund resources among
releases.
(3) Federal facilities that meet the criteria identified in
paragraph (c) of this section are eligible for inclusion on the NPL.
Except as provided by CERCLA sections 111(e)(3) and 111(c), federal
facilities are not eligible for Fund-financed remedial actions.
(4) Inclusion on the NPL is not a precondition to action by the lead
agency under CERCLA sections 106 or 122 or to action under CERCLA
section 107 for recovery of non-Fund-financed costs or Fund-financed
costs other than Fund-financed remedial construction costs.
(c) Methods for determining eligibility for NPL. A release may be
included on the NPL if the release meets one of the following criteria:
(1) The release scores sufficiently high pursuant to the Hazard
Ranking System described in appendix A to this part.
(2) A state (not including Indian tribes) has designated a release
as its highest priority. States may make only one such designation; or
(3) The release satisfies all of the following criteria:
(i) The Agency for Toxic Substances and Disease Registry has issued
a health advisory that recommends dissociation of individuals from the
release;
(ii) EPA determines that the release poses a significant threat to
public health; and
(iii) EPA anticipates that it will be more cost-effective to use its
remedial authority than to use removal authority to respond to the
release.
(d) Procedures for placing sites on the NPL. Lead agencies may
submit candidates to EPA by scoring the release using the HRS and
providing the appropriate backup documentation.
(1) Lead agencies may submit HRS scoring packages to EPA anytime
throughout the year.
(2) EPA shall review lead agencies' HRS scoring packages and revise
them as appropriate. EPA shall develop any additional HRS scoring
packages on releases known to EPA.
(3) EPA shall compile the NPL based on the methods identified in
paragraph (c) of this section.
(4) EPA shall update the NPL at least once a year.
(5) To ensure public involvement during the proposal to add a
release to the NPL, EPA shall:
(i) Publish the proposed rule in the Federal Register and solicit
comments through a public comment period; and
(ii) Publish the final rule in the Federal Register, and make
available a response to each significant comment and any significant new
data submitted during the comment period.
(6) Releases may be categorized on the NPL when deemed appropriate
by EPA.
(e) Deletion from the NPL. Releases may be deleted from or
recategorized on the NPL where no further response is appropriate.
(1) EPA shall consult with the state on proposed deletions from the
NPL prior to developing the notice of intent to delete. In making a
determination to delete a release from the NPL, EPA shall consider, in
consultation with the state, whether any of the following criteria has
been met:
[[Page 69]]
(i) Responsible parties or other persons have implemented all
appropriate response actions required;
(ii) All appropriate Fund-financed response under CERCLA has been
implemented, and no further response action by responsible parties is
appropriate; or
(iii) The remedial investigation has shown that the release poses no
significant threat to public health or the environment and, therefore,
taking of remedial measures is not appropriate.
(2) Releases shall not be deleted from the NPL until the state in
which the release was located has concurred on the proposed deletion.
EPA shall provide the state 30 working days for review of the deletion
notice prior to its publication in the Federal Register.
(3) All releases deleted from the NPL are eligible for further Fund-
financed remedial actions should future conditions warrant such action.
Whenever there is a significant release from a site deleted from the
NPL, the site shall be restored to the NPL without application of the
HRS.
(4) To ensure public involvement during the proposal to delete a
release from the NPL, EPA shall:
(i) Publish a notice of intent to delete in the Federal Register and
solicit comment through a public comment period of a minimum of 30
calendar days;
(ii) In a major local newspaper of general circulation at or near
the release that is proposed for deletion, publish a notice of
availability or use one or more other mechanisms to give adequate notice
to a community of the intent to delete;
(iii) Place copies of information supporting the proposed deletion
in the information repository, described in Sec. 300.430(c)(2)(iii), at
or near the release proposed for deletion. These items shall be
available for public inspection and copying; and
(iv) Respond to each significant comment and any significant new
data submitted during the comment period and include this response
document in the final deletion package.
(5) EPA shall place the final deletion package in the local
information repository once the notice of final deletion has been
published in the Federal Register.
[55 FR 8839, Mar. 8, 1990, as amended at 80 FR 17706, Apr. 2, 2015]
Sec. 300.430 Remedial investigation/feasibility study and selection
of remedy.
(a) General--(1) Introduction. The purpose of the remedy selection
process is to implement remedies that eliminate, reduce, or control
risks to human health and the environment. Remedial actions are to be
implemented as soon as site data and information make it possible to do
so. Accordingly, EPA has established the following program goal,
expectations, and program management principles to assist in the
identification and implementation of appropriate remedial actions.
(i) Program goal. The national goal of the remedy selection process
is to select remedies that are protective of human health and the
environment, that maintain protection over time, and that minimize
untreated waste.
(ii) Program management principles. EPA generally shall consider the
following general principles of program management during the remedial
process:
(A) Sites should generally be remediated in operable units when
early actions are necessary or appropriate to achieve significant risk
reduction quickly, when phased analysis and response is necessary or
appropriate given the size or complexity of the site, or to expedite the
completion of total site cleanup.
(B) Operable units, including interim action operable units, should
not be inconsistent with nor preclude implementation of the expected
final remedy.
(C) Site-specific data needs, the evaluation of alternatives, and
the documentation of the selected remedy should reflect the scope and
complexity of the site problems being addressed.
(iii) Expectations. EPA generally shall consider the following
expectations in developing appropriate remedial alternatives:
(A) EPA expects to use treatment to address the principal threats
posed by a site, wherever practicable. Principal
[[Page 70]]
threats for which treatment is most likely to be appropriate include
liquids, areas contaminated with high concentrations of toxic compounds,
and highly mobile materials.
(B) EPA expects to use engineering controls, such as containment,
for waste that poses a relatively low long-term threat or where
treatment is impracticable.
(C) EPA expects to use a combination of methods, as appropriate, to
achieve protection of human health and the environment. In appropriate
site situations, treatment of the principal threats posed by a site,
with priority placed on treating waste that is liquid, highly toxic or
highly mobile, will be combined with engineering controls (such as
containment) and institutional controls, as appropriate, for treatment
residuals and untreated waste.
(D) EPA expects to use institutional controls such as water use and
deed restrictions to supplement engineering controls as appropriate for
short- and long-term management to prevent or limit exposure to
hazardous substances, pollutants, or contaminants. Institutional
controls may be used during the conduct of the remedial investigation/
feasibility study (RI/FS) and implementation of the remedial action and,
where necessary, as a component of the completed remedy. The use of
institutional controls shall not substitute for active response measures
(e.g., treatment and/or containment of source material, restoration of
ground waters to their beneficial uses) as the sole remedy unless such
active measures are determined not to be practicable, based on the
balancing of trade-offs among alternatives that is conducted during the
selection of remedy.
(E) EPA expects to consider using innovative technology when such
technology offers the potential for comparable or superior treatment
performance or implementability, fewer or lesser adverse impacts than
other available approaches, or lower costs for similar levels of
performance than demonstrated technologies.
(F) EPA expects to return usable ground waters to their beneficial
uses wherever practicable, within a timeframe that is reasonable given
the particular circumstances of the site. When restoration of ground
water to beneficial uses is not practicable, EPA expects to prevent
further migration of the plume, prevent exposure to the contaminated
ground water, and evaluate further risk reduction.
(2) Remedial investigation/feasibility study. The purpose of the
remedial investigation/feasibility study (RI/FS) is to assess site
conditions and evaluate alternatives to the extent necessary to select a
remedy. Developing and conducting an RI/FS generally includes the
following activities: project scoping, data collection, risk assessment,
treatability studies, and analysis of alternatives. The scope and timing
of these activities should be tailored to the nature and complexity of
the problem and the response alternatives being considered.
(b) Scoping. In implementing this section, the lead agency should
consider the program goal, program management principles, and
expectations contained in this rule. The investigative and analytical
studies should be tailored to site circumstances so that the scope and
detail of the analysis is appropriate to the complexity of site problems
being addressed. During scoping, the lead and support agencies shall
confer to identify the optimal set and sequence of actions necessary to
address site problems. Specifically, the lead agency shall:
(1) Assemble and evaluate existing data on the site, including the
results of any removal actions, remedial preliminary assessment and site
inspections, and the NPL listing process.
(2) Develop a conceptual understanding of the site based on the
evaluation of existing data described in paragraph (b)(1) of this
section.
(3) Identify likely response scenarios and potentially applicable
technologies and operable units that may address site problems.
(4) Undertake limited data collection efforts or studies where this
information will assist in scoping the RI/FS or accelerate response
actions, and begin to identify the need for treatability studies, as
appropriate.
[[Page 71]]
(5) Identify the type, quality, and quantity of the data that will
be collected during the RI/FS to support decisions regarding remedial
response activities.
(6) Prepare site-specific health and safety plans that shall
specify, at a minimum, employee training and protective equipment,
medical surveillance requirements, standard operating procedures, and a
contingency plan that conforms with 29 CFR 1910.120 (l)(1) and (l)(2).
(7) If natural resources are or may be injured by the release,
ensure that state and federal trustees of the affected natural resources
have been notified in order that the trustees may initiate appropriate
actions, including those identified in subpart G of this part. The lead
agency shall seek to coordinate necessary assessments, evaluations,
investigations, and planning with such state and federal trustees.
(8) Develop sampling and analysis plans that shall provide a process
for obtaining data of sufficient quality and quantity to satisfy data
needs. Sampling and analysis plans shall be reviewed and approved by
EPA. The sampling and analysis plans shall consist of two parts:
(i) The field sampling plan, which describes the number, type, and
location of samples and the type of analyses; and
(ii) The quality assurance project plan, which describes policy,
organization, and functional activities and the data quality objectives
and measures necessary to achieve adequate data for use in selecting the
appropriate remedy.
(9) Initiate the identification of potential federal and state ARARs
and, as appropriate, other criteria, advisories, or guidance to be
considered.
(c) Community relations. (1) The community relations requirements
described in this section apply to all remedial activities undertaken
pursuant to CERCLA section 104 and to section 106 or section 122 consent
orders or decrees, or section 106 administrative orders.
(2) The lead agency shall provide for the conduct of the following
community relations activities, to the extent practicable, prior to
commencing field work for the remedial investigation:
(i) Conducting interviews with local officials, community residents,
public interest groups, or other interested or affected parties, as
appropriate, to solicit their concerns and information needs, and to
learn how and when citizens would like to be involved in the Superfund
process.
(ii) Preparing a formal community relations plan (CRP), based on the
community interviews and other relevant information, specifying the
community relations activities that the lead agency expects to undertake
during the remedial response. The purpose of the CRP is to:
(A) Ensure the public appropriate opportunities for involvement in a
wide variety of site-related decisions, including site analysis and
characterization, alternatives analysis, and selection of remedy;
(B) Determine, based on community interviews, appropriate activities
to ensure such public involvement, and
(C) Provide appropriate opportunities for the community to learn
about the site.
(iii) Establishing at least one local information repository at or
near the location of the response action. Each information repository
should contain a copy of items made available to the public, including
information that describes the technical assistance grants application
process. The lead agency shall inform interested parties of the
establishment of the information repository.
(iv) Informing the community of the availability of technical
assistance grants.
(3) For PRP actions, the lead agency shall plan and implement the
community relations program at a site. PRPs may participate in aspects
of the community relations program at the discretion of and with
oversight by the lead agency.
(4) The lead agency may conduct technical discussions involving PRPs
and the public. These technical discussions may be held separately from,
but contemporaneously with, the negotiations/settlement discussions.
[[Page 72]]
(5) In addition, the following provisions specifically apply to
enforcement actions:
(i) Lead agencies entering into an enforcement agreement with de
minimis parties under CERCLA section 122(g) or cost recovery settlements
under section 122(h) shall publish a notice of the proposed agreement in
the Federal Register at least 30 days before the agreement becomes
final, as required by section 122(i). The notice must identify the name
of the facility and the parties to the proposed agreement and must allow
an opportunity for comment and consideration of comments; and
(ii) Where the enforcement agreement is embodied in a consent
decree, public notice and opportunity for public comment shall be
provided in accordance with 28 CFR 50.7.
(d) Remedial investigation. (1) The purpose of the remedial
investigation (RI) is to collect data necessary to adequately
characterize the site for the purpose of developing and evaluating
effective remedial alternatives. To characterize the site, the lead
agency shall, as appropriate, conduct field investigations, including
treatability studies, and conduct a baseline risk assessment. The RI
provides information to assess the risks to human health and the
environment and to support the development, evaluation, and selection of
appropriate response alternatives. Site characterization may be
conducted in one or more phases to focus sampling efforts and increase
the efficiency of the investigation. Because estimates of actual or
potential exposures and associated impacts on human and environmental
receptors may be refined throughout the phases of the RI as new
information is obtained, site characterization activities should be
fully integrated with the development and evaluation of alternatives in
the feasibility study. Bench- or pilot-scale treatability studies shall
be conducted, when appropriate and practicable, to provide additional
data for the detailed analysis and to support engineering design of
remedial alternatives.
(2) The lead agency shall characterize the nature of and threat
posed by the hazardous substances and hazardous materials and gather
data necessary to assess the extent to which the release poses a threat
to human health or the environment or to support the analysis and design
of potential response actions by conducting, as appropriate, field
investigations to assess the following factors:
(i) Physical characteristics of the site, including important
surface features, soils, geology, hydrogeology, meteorology, and
ecology;
(ii) Characteristics or classifications of air, surface water, and
ground water;
(iii) The general characteristics of the waste, including
quantities, state, concentration, toxicity, propensity to bioaccumulate,
persistence, and mobility;
(iv) The extent to which the source can be adequately identified and
characterized;
(v) Actual and potential exposure pathways through environmental
media;
(vi) Actual and potential exposure routes, for example, inhalation
and ingestion; and
(vii) Other factors, such as sensitive populations, that pertain to
the characterization of the site or support the analysis of potential
remedial action alternatives.
(3) The lead and support agency shall identify their respective
potential ARARs related to the location of and contaminants at the site
in a timely manner. The lead and support agencies may also, as
appropriate, identify other pertinent advisories, criteria, or guidance
in a timely manner (see Sec. 300.400(g)(3)).
(4) Using the data developed under paragraphs (d)(1) and (2) of this
section, the lead agency shall conduct a site-specific baseline risk
assessment to characterize the current and potential threats to human
health and the environment that may be posed by contaminants migrating
to ground water or surface water, releasing to air, leaching through
soil, remaining in the soil, and bioaccumulating in the food chain. The
results of the baseline risk assessment will help establish acceptable
exposure levels for use in developing remedial alternatives in the FS,
as described in paragraph (e) of this section.
[[Page 73]]
(e) Feasibility study. (1) The primary objective of the feasibility
study (FS) is to ensure that appropriate remedial alternatives are
developed and evaluated such that relevant information concerning the
remedial action options can be presented to a decision-maker and an
appropriate remedy selected. The lead agency may develop a feasibility
study to address a specific site problem or the entire site. The
development and evaluation of alternatives shall reflect the scope and
complexity of the remedial action under consideration and the site
problems being addressed. Development of alternatives shall be fully
integrated with the site characterization activities of the remedial
investigation described in paragraph (d) of this section. The lead
agency shall include an alternatives screening step, when needed, to
select a reasonable number of alternatives for detailed analysis.
(2) Alternatives shall be developed that protect human health and
the environment by recycling waste or by eliminating, reducing, and/or
controlling risks posed through each pathway by a site. The number and
type of alternatives to be analyzed shall be determined at each site,
taking into account the scope, characteristics, and complexity of the
site problem that is being addressed. In developing and, as appropriate,
screening the alternatives, the lead agency shall:
(i) Establish remedial action objectives specifying contaminants and
media of concern, potential exposure pathways, and remediation goals.
Initially, preliminary remediation goals are developed based on readily
available information, such as chemical-specific ARARs or other reliable
information. Preliminary remediation goals should be modified, as
necessary, as more information becomes available during the RI/FS. Final
remediation goals will be determined when the remedy is selected.
Remediation goals shall establish acceptable exposure levels that are
protective of human health and the environment and shall be developed by
considering the following:
(A) Applicable or relevant and appropriate requirements under
federal environmental or state environmental or facility siting laws, if
available, and the following factors:
(1) For systemic toxicants, acceptable exposure levels shall
represent concentration levels to which the human population, including
sensitive subgroups, may be exposed without adverse effect during a
lifetime or part of a lifetime, incorporating an adequate margin of
safety;
(2) For known or suspected carcinogens, acceptable exposure levels
are generally concentration levels that represent an excess upper bound
lifetime cancer risk to an individual of between 10-4 and
10-6 using information on the relationship between dose and
response. The 10-6 risk level shall be used as the point of
departure for determining remediation goals for alternatives when ARARs
are not available or are not sufficiently protective because of the
presence of multiple contaminants at a site or multiple pathways of
exposure;
(3) Factors related to technical limitations such as detection/
quantification limits for contaminants;
(4) Factors related to uncertainty; and
(5) Other pertinent information.
(B) Maximum contaminant level goals (MCLGs), established under the
Safe Drinking Water Act, that are set at levels above zero, shall be
attained by remedial actions for ground or surface waters that are
current or potential sources of drinking water, where the MCLGs are
relevant and appropriate under the circumstances of the release based on
the factors in Sec. 300.400(g)(2). If an MCLG is determined not to be
relevant and appropriate, the corresponding maximum contaminant level
(MCL) shall be attained where relevant and appropriate to the
circumstances of the release.
(C) Where the MCLG for a contaminant has been set at a level of
zero, the MCL promulgated for that contaminant under the Safe Drinking
Water Act shall be attained by remedial actions for ground or surface
waters that are current or potential sources of drinking water, where
the MCL is relevant and appropriate under the circumstances of the
release based on the factors in Sec. 300.400(g)(2).
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(D) In cases involving multiple contaminants or pathways where
attainment of chemical-specific ARARs will result in cumulative risk in
excess of 10-4, criteria in paragraph (e)(2)(i)(A) of this
section may also be considered when determining the cleanup level to be
attained.
(E) Water quality criteria established under sections 303 or 304 of
the Clean Water Act shall be attained where relevant and appropriate
under the circumstances of the release.
(F) An alternate concentration limit (ACL) may be established in
accordance with CERCLA section 121(d)(2)(B)(ii).
(G) Environmental evaluations shall be performed to assess threats
to the environment, especially sensitive habitats and critical habitats
of species protected under the Endangered Species Act.
(ii) Identify and evaluate potentially suitable technologies,
including innovative technologies;
(iii) Assemble suitable technologies into alternative remedial
actions.
(3) For source control actions, the lead agency shall develop, as
appropriate:
(i) A range of alternatives in which treatment that reduces the
toxicity, mobility, or volume of the hazardous substances, pollutants,
or contaminants is a principal element. As appropriate, this range shall
include an alternative that removes or destroys hazardous substances,
pollutants, or contaminants to the maximum extent feasible, eliminating
or minimizing, to the degree possible, the need for long-term
management. The lead agency also shall develop, as appropriate, other
alternatives which, at a minimum, treat the principal threats posed by
the site but vary in the degree of treatment employed and the quantities
and characteristics of the treatment residuals and untreated waste that
must be managed; and
(ii) One or more alternatives that involve little or no treatment,
but provide protection of human health and the environment primarily by
preventing or controlling exposure to hazardous substances, pollutants,
or contaminants, through engineering controls, for example, containment,
and, as necessary, institutional controls to protect human health and
the environment and to assure continued effectiveness of the response
action.
(4) For ground-water response actions, the lead agency shall develop
a limited number of remedial alternatives that attain site-specific
remediation levels within different restoration time periods utilizing
one or more different technologies.
(5) The lead agency shall develop one or more innovative treatment
technologies for further consideration if those technologies offer the
potential for comparable or superior performance or implementability;
fewer or lesser adverse impacts than other available approaches; or
lower costs for similar levels of performance than demonstrated
treatment technologies.
(6) The no-action alternative, which may be no further action if
some removal or remedial action has already occurred at the site, shall
be developed.
(7) As appropriate, and to the extent sufficient information is
available, the short- and long-term aspects of the following three
criteria shall be used to guide the development and screening of
remedial alternatives:
(i) Effectiveness. This criterion focuses on the degree to which an
alternative reduces toxicity, mobility, or volume through treatment,
minimizes residual risks and affords long-term protection, complies with
ARARs, minimizes short-term impacts, and how quickly it achieves
protection. Alternatives providing significantly less effectiveness than
other, more promising alternatives may be eliminated. Alternatives that
do not provide adequate protection of human health and the environment
shall be eliminated from further consideration.
(ii) Implementability. This criterion focuses on the technical
feasibility and availability of the technologies each alternative would
employ and the administrative feasibility of implementing the
alternative. Alternatives that are technically or administratively
infeasible or that would require equipment, specialists, or facilities
that are not available within a reasonable period of time may be
eliminated from further consideration.
[[Page 75]]
(iii) Cost. The costs of construction and any long-term costs to
operate and maintain the alternatives shall be considered. Costs that
are grossly excessive compared to the overall effectiveness of
alternatives may be considered as one of several factors used to
eliminate alternatives. Alternatives providing effectiveness and
implementability similar to that of another alternative by employing a
similar method of treatment or engineering control, but at greater cost,
may be eliminated.
(8) The lead agency shall notify the support agency of the
alternatives that will be evaluated in detail to facilitate the
identification of ARARs and, as appropriate, pertinent advisories,
criteria, or guidance to be considered.
(9) Detailed analysis of alternatives. (i) A detailed analysis shall
be conducted on the limited number of alternatives that represent viable
approaches to remedial action after evaluation in the screening stage.
The lead and support agencies must identify their ARARs related to
specific actions in a timely manner and no later than the early stages
of the comparative analysis. The lead and support agencies may also, as
appropriate, identify other pertinent advisories, criteria, or guidance
in a timely manner.
(ii) The detailed analysis consists of an assessment of individual
alternatives against each of nine evaluation criteria and a comparative
analysis that focuses upon the relative performance of each alternative
against those criteria.
(iii) Nine criteria for evaluation. The analysis of alternatives
under review shall reflect the scope and complexity of site problems and
alternatives being evaluated and consider the relative significance of
the factors within each criteria. The nine evaluation criteria are as
follows:
(A) Overall protection of human health and the environment.
Alternatives shall be assessed to determine whether they can adequately
protect human health and the environment, in both the short- and long-
term, from unacceptable risks posed by hazardous substances, pollutants,
or contaminants present at the site by eliminating, reducing, or
controlling exposures to levels established during development of
remediation goals consistent with Sec. 300.430(e)(2)(i). Overall
protection of human health and the environment draws on the assessments
of other evaluation criteria, especially long-term effectiveness and
permanence, short-term effectiveness, and compliance with ARARs.
(B) Compliance with ARARs. The alternatives shall be assessed to
determine whether they attain applicable or relevant and appropriate
requirements under federal environmental laws and state environmental or
facility siting laws or provide grounds for invoking one of the waivers
under paragraph (f)(1)(ii)(C) of this section.
(C) Long-term effectiveness and permanence. Alternatives shall be
assessed for the long-term effectiveness and permanence they afford,
along with the degree of certainty that the alternative will prove
successful. Factors that shall be considered, as appropriate, include
the following:
(1) Magnitude of residual risk remaining from untreated waste or
treatment residuals remaining at the conclusion of the remedial
activities. The characteristics of the residuals should be considered to
the degree that they remain hazardous, taking into account their volume,
toxicity, mobility, and propensity to bioaccumulate.
(2) Adequacy and reliability of controls such as containment systems
and institutional controls that are necessary to manage treatment
residuals and untreated waste. This factor addresses in particular the
uncertainties associated with land disposal for providing long-term
protection from residuals; the assessment of the potential need to
replace technical components of the alternative, such as a cap, a slurry
wall, or a treatment system; and the potential exposure pathways and
risks posed should the remedial action need replacement.
(D) Reduction of toxicity, mobility, or volume through treatment.
The degree to which alternatives employ recycling or treatment that
reduces toxicity, mobility, or volume shall be assessed, including how
treatment is used to address the principal threats posed by the site.
Factors that shall be considered, as appropriate, include the following:
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(1) The treatment or recycling processes the alternatives employ and
materials they will treat;
(2) The amount of hazardous substances, pollutants, or contaminants
that will be destroyed, treated, or recycled;
(3) The degree of expected reduction in toxicity, mobility, or
volume of the waste due to treatment or recycling and the specification
of which reduction(s) are occurring;
(4) The degree to which the treatment is irreversible;
(5) The type and quantity of residuals that will remain following
treatment, considering the persistence, toxicity, mobility, and
propensity to bioaccumulate of such hazardous substances and their
constituents; and
(6) The degree to which treatment reduces the inherent hazards posed
by principal threats at the site.
(E) Short-term effectiveness. The short-term impacts of alternatives
shall be assessed considering the following:
(1) Short-term risks that might be posed to the community during
implementation of an alternative;
(2) Potential impacts on workers during remedial action and the
effectiveness and reliability of protective measures;
(3) Potential environmental impacts of the remedial action and the
effectiveness and reliability of mitigative measures during
implementation; and
(4) Time until protection is achieved.
(F) Implementability. The ease or difficulty of implementing the
alternatives shall be assessed by considering the following types of
factors as appropriate:
(1) Technical feasibility, including technical difficulties and
unknowns associated with the construction and operation of a technology,
the reliability of the technology, ease of undertaking additional
remedial actions, and the ability to monitor the effectiveness of the
remedy.
(2) Administrative feasibility, including activities needed to
coordinate with other offices and agencies and the ability and time
required to obtain any necessary approvals and permits from other
agencies (for off-site actions);
(3) Availability of services and materials, including the
availability of adequate off-site treatment, storage capacity, and
disposal capacity and services; the availability of necessary equipment
and specialists, and provisions to ensure any necessary additional
resources; the availability of services and materials; and availability
of prospective technologies.
(G) Cost. The types of costs that shall be assessed include the
following:
(1) Capital costs, including both direct and indirect costs;
(2) Annual operation and maintenance costs; and
(3) Net present value of capital and O&M costs.
(H) State acceptance. Assessment of state concerns may not be
completed until comments on the RI/FS are received but may be discussed,
to the extent possible, in the proposed plan issued for public comment.
The state concerns that shall be assessed include the following:
(1) The state's position and key concerns related to the preferred
alternative and other alternatives; and
(2) State comments on ARARs or the proposed use of waivers.
(I) Community acceptance. This assessment includes determining which
components of the alternatives interested persons in the community
support, have reservations about, or oppose. This assessment may not be
completed until comments on the proposed plan are received.
(f) Selection of remedy--(1) Remedies selected shall reflect the
scope and purpose of the actions being undertaken and how the action
relates to long-term, comprehensive response at the site.
(i) The criteria noted in paragraph (e)(9)(iii) of this section are
used to select a remedy. These criteria are categorized into three
groups.
(A) Threshold criteria. Overall protection of human health and the
environment and compliance with ARARs (unless a specific ARAR is waived)
are threshold requirements that each alternative must meet in order to
be eligible for selection.
(B) Primary balancing criteria. The five primary balancing criteria
are long-
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term effectiveness and permanence; reduction of toxicity, mobility, or
volume through treatment; short-term effectiveness; implementability;
and cost.
(C) Modifying criteria. State and community acceptance are modifying
criteria that shall be considered in remedy selection.
(ii) The selection of a remedial action is a two-step process and
shall proceed in accordance with Sec. 300.515(e). First, the lead
agency, in conjunction with the support agency, identifies a preferred
alternative and presents it to the public in a proposed plan, for review
and comment. Second, the lead agency shall review the public comments
and consult with the state (or support agency) in order to determine if
the alternative remains the most appropriate remedial action for the
site or site problem. The lead agency, as specified in Sec. 300.515(e),
makes the final remedy selection decision, which shall be documented in
the ROD. Each remedial alternative selected as a Superfund remedy will
employ the criteria as indicated in paragraph (f)(1)(i) of this section
to make the following determination:
(A) Each remedial action selected shall be protective of human
health and the environment.
(B) On-site remedial actions selected in a ROD must attain those
ARARs that are identified at the time of ROD signature or provide
grounds for invoking a waiver under Sec. 300.430(f)(1)(ii)(C).
(1) Requirements that are promulgated or modified after ROD
signature must be attained (or waived) only when determined to be
applicable or relevant and appropriate and necessary to ensure that the
remedy is protective of human health and the environment.
(2) Components of the remedy not described in the ROD must attain
(or waive) requirements that are identified as applicable or relevant
and appropriate at the time the amendment to the ROD or the explanation
of significant difference describing the component is signed.
(C) An alternative that does not meet an ARAR under federal
environmental or state environmental or facility siting laws may be
selected under the following circumstances:
(1) The alternative is an interim measure and will become part of a
total remedial action that will attain the applicable or relevant and
appropriate federal or state requirement;
(2) Compliance with the requirement will result in greater risk to
human health and the environment than other alternatives;
(3) Compliance with the requirement is technically impracticable
from an engineering perspective;
(4) The alternative will attain a standard of performance that is
equivalent to that required under the otherwise applicable standard,
requirement, or limitation through use of another method or approach;
(5) With respect to a state requirement, the state has not
consistently applied, or demonstrated the intention to consistently
apply, the promulgated requirement in similar circumstances at other
remedial actions within the state; or
(6) For Fund-financed response actions only, an alternative that
attains the ARAR will not provide a balance between the need for
protection of human health and the environment at the site and the
availability of Fund monies to respond to other sites that may present a
threat to human health and the environment.
(D) Each remedial action selected shall be cost-effective, provided
that it first satisfies the threshold criteria set forth in Sec.
300.430(f)(1)(ii)(A) and (B). Cost-effectiveness is determined by
evaluating the following three of the five balancing criteria noted in
Sec. 300.430(f)(1)(i)(B) to determine overall effectiveness: long-term
effectiveness and permanence, reduction of toxicity, mobility, or volume
through treatment, and short-term effectiveness. Overall effectiveness
is then compared to cost to ensure that the remedy is cost-effective. A
remedy shall be cost-effective if its costs are proportional to its
overall effectiveness.
(E) Each remedial action shall utilize permanent solutions and
alternative treatment technologies or resource recovery technologies to
the maximum extent practicable. This requirement shall be fulfilled by
selecting the alternative that satisfies paragraph (f)(1)(ii)(A) and (B)
of this section and
[[Page 78]]
provides the best balance of trade-offs among alternatives in terms of
the five primary balancing criteria noted in paragraph (f)(1)(i)(B) of
this section. The balancing shall emphasize long-term effectiveness and
reduction of toxicity, mobility, or volume through treatment. The
balancing shall also consider the preference for treatment as a
principal element and the bias against off-site land disposal of
untreated waste. In making the determination under this paragraph, the
modifying criteria of state acceptance and community acceptance
described in paragraph (f)(1)(i)(C) of this section shall also be
considered.
(2) The proposed plan. In the first step in the remedy selection
process, the lead agency shall identify the alternative that best meets
the requirements in Sec. 300.430(f)(1), above, and shall present that
alternative to the public in a proposed plan. The lead agency, in
conjunction with the support agency and consistent with Sec.
300.515(e), shall prepare a proposed plan that briefly describes the
remedial alternatives analyzed by the lead agency, proposes a preferred
remedial action alternative, and summarizes the information relied upon
to select the preferred alternative. The selection of remedy process for
an operable unit may be initiated at any time during the remedial action
process. The purpose of the proposed plan is to supplement the RI/FS and
provide the public with a reasonable opportunity to comment on the
preferred alternative for remedial action, as well as alternative plans
under consideration, and to participate in the selection of remedial
action at a site. At a minimum, the proposed plan shall:
(i) Provide a brief summary description of the remedial alternatives
evaluated in the detailed analysis established under paragraph (e)(9) of
this section;
(ii) Identify and provide a discussion of the rationale that
supports the preferred alternative;
(iii) Provide a summary of any formal comments received from the
support agency; and
(iv) Provide a summary explanation of any proposed waiver identified
under paragraph (f)(1)(ii)(C) of this section from an ARAR.
(3) Community relations to support the selection of remedy. (i) The
lead agency, after preparation of the proposed plan and review by the
support agency, shall conduct the following activities:
(A) Publish a notice of availability and brief analysis of the
proposed plan in a major local newspaper of general circulation;
(B) Make the proposed plan and supporting analysis and information
available in the administrative record required under subpart I of this
part;
(C) Provide a reasonable opportunity, not less than 30 calendar
days, for submission of written and oral comments on the proposed plan
and the supporting analysis and information located in the information
repository, including the RI/FS. Upon timely request, the lead agency
will extend the public comment period by a minimum of 30 additional
days;
(D) Provide the opportunity for a public meeting to be held during
the public comment period at or near the site at issue regarding the
proposed plan and the supporting analysis and information;
(E) Keep a transcript of the public meeting held during the public
comment period pursuant to CERCLA section 117(a) and make such
transcript available to the public; and
(F) Prepare a written summary of significant comments, criticisms,
and new relevant information submitted during the public comment period
and the lead agency response to each issue. This responsiveness summary
shall be made available with the record of decision.
(ii) After publication of the proposed plan and prior to adoption of
the selected remedy in the record of decision, if new information is
made available that significantly changes the basic features of the
remedy with respect to scope, performance, or cost, such that the remedy
significantly differs from the original proposal in the proposed plan
and the supporting analysis and information, the lead agency shall:
(A) Include a discussion in the record of decision of the
significant changes and reasons for such changes, if the lead agency
determines such changes could be reasonably anticipated by the public
based on the alternatives and
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other information available in the proposed plan or the supporting
analysis and information in the administrative record; or
(B) Seek additional public comment on a revised proposed plan, when
the lead agency determines the change could not have been reasonably
anticipated by the public based on the information available in the
proposed plan or the supporting analysis and information in the
administrative record. The lead agency shall, prior to adoption of the
selected remedy in the ROD, issue a revised proposed plan, which shall
include a discussion of the significant changes and the reasons for such
changes, in accordance with the public participation requirements
described in paragraph (f)(3)(i) of this section.
(4) Final remedy selection. (i) In the second and final step in the
remedy selection process, the lead agency shall reassess its initial
determination that the preferred alternative provides the best balance
of trade-offs, now factoring in any new information or points of view
expressed by the state (or support agency) and community during the
public comment period. The lead agency shall consider state (or support
agency) and community comments regarding the lead agency's evaluation of
alternatives with respect to the other criteria. These comments may
prompt the lead agency to modify aspects of the preferred alternative or
decide that another alternative provides a more appropriate balance. The
lead agency, as specified in Sec. 300.515(e), shall make the final
remedy selection decision and document that decision in the ROD.
(ii) If a remedial action is selected that results in hazardous
substances, pollutants, or contaminants remaining at the site above
levels that allow for unlimited use and unrestricted exposure, the lead
agency shall review such action no less often than every five years
after initiation of the selected remedial action.
(iii) The process for selection of a remedial action at a federal
facility on the NPL, pursuant to CERCLA section 120, shall entail:
(A) Joint selection of remedial action by the head of the relevant
department, agency, or instrumentality and EPA; or
(B) If mutual agreement on the remedy is not reached, selection of
the remedy is made by EPA.
(5) Documenting the decision. (i) To support the selection of a
remedial action, all facts, analyses of facts, and site-specific policy
determinations considered in the course of carrying out activities in
this section shall be documented, as appropriate, in a record of
decision, in a level of detail appropriate to the site situation, for
inclusion in the administrative record required under subpart I of this
part. Documentation shall explain how the evaluation criteria in
paragraph (e)(9)(iii) of this section were used to select the remedy.
(ii) The ROD shall describe the following statutory requirements as
they relate to the scope and objectives of the action:
(A) How the selected remedy is protective of human health and the
environment, explaining how the remedy eliminates, reduces, or controls
exposures to human and environmental receptors;
(B) The federal and state requirements that are applicable or
relevant and appropriate to the site that the remedy will attain;
(C) The applicable or relevant and appropriate requirements of other
federal and state laws that the remedy will not meet, the waiver
invoked, and the justification for invoking the waiver;
(D) How the remedy is cost-effective, i.e., explaining how the
remedy provides overall effectiveness proportional to its costs;
(E) How the remedy utilizes permanent solutions and alternative
treatment technologies or resource recovery technologies to the maximum
extent practicable; and
(F) Whether the preference for remedies employing treatment which
permanently and significantly reduces the toxicity, mobility, or volume
of the hazardous substances, pollutants, or contaminants as a principal
element is or is not satisfied by the selected remedy. If this
preference is not satisfied, the record of decision must explain why a
remedial action involving such
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reductions in toxicity, mobility, or volume was not selected.
(iii) The ROD also shall:
(A) Indicate, as appropriate, the remediation goals, discussed in
paragraph (e)(2)(i) of this section, that the remedy is expected to
achieve. Performance shall be measured at appropriate locations in the
ground water, surface water, soils, air, and other affected
environmental media. Measurement relating to the performance of the
treatment processes and the engineering controls may also be identified,
as appropriate;
(B) Discuss significant changes and the response to comments
described in paragraph (f)(3)(i)(F) of this section;
(C) Describe whether hazardous substances, pollutants, or
contaminants will remain at the site such that a review of the remedial
action under paragraph (f)(4)(ii) of this section no less often than
every five years shall be required; and
(D) When appropriate, provide a commitment for further analysis and
selection of long-term response measures within an appropriate time-
frame.
(6) Community relations when the record of decision is signed. After
the ROD is signed, the lead agency shall:
(i) Publish a notice of the availability of the ROD in a major local
newspaper of general circulation; and
(ii) Make the record of decision available for public inspection and
copying at or near the facility at issue prior to the commencement of
any remedial action.
Sec. 300.435 Remedial design/remedial action, operation and maintenance.
(a) General. The remedial design/remedial action (RD/RA) stage
includes the development of the actual design of the selected remedy and
implementation of the remedy through construction. A period of operation
and maintenance may follow the RA activities.
(b) RD/RA activities. (1) All RD/RA activities shall be in
conformance with the remedy selected and set forth in the ROD or other
decision document for that site. Those portions of RD/RA sampling and
analysis plans describing the QA/QC requirements for chemical and
analytical testing and sampling procedures of samples taken for the
purpose of determining whether cleanup action levels specified in the
ROD are achieved, generally will be consistent with the requirements of
Sec. 300.430(b)(8).
(2) During the course of the RD/RA, the lead agency shall be
responsible for ensuring that all federal and state requirements that
are identified in the ROD as applicable or relevant and appropriate
requirements for the action are met. If waivers from any ARARs are
involved, the lead agency shall be responsible for ensuring that the
conditions of the waivers are met.
(c) Community relations. (1) Prior to the initiation of RD, the lead
agency shall review the CRP to determine whether it should be revised to
describe further public involvement activities during RD/RA that are not
already addressed or provided for in the CRP.
(2) After the adoption of the ROD, if the remedial action or
enforcement action taken, or the settlement or consent decree entered
into, differs significantly from the remedy selected in the ROD with
respect to scope, performance, or cost, the lead agency shall consult
with the support agency, as appropriate, and shall either:
(i) Publish an explanation of significant differences when the
differences in the remedial or enforcement action, settlement, or
consent decree significantly change but do not fundamentally alter the
remedy selected in the ROD with respect to scope, performance, or cost.
To issue an explanation of significant differences, the lead agency
shall:
(A) Make the explanation of significant differences and supporting
information available to the public in the administrative record
established under Sec. 300.815 and the information repository; and
(B) Publish a notice that briefly summarizes the explanation of
significant differences, including the reasons for such differences, in
a major local newspaper of general circulation; or
(ii) Propose an amendment to the ROD if the differences in the
remedial or enforcement action, settlement, or consent decree
fundamentally alter the basic features of the selected remedy with
respect to scope, performance, or
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cost. To amend the ROD, the lead agency, in conjunction with the support
agency, as provided in Sec. 300.515(e), shall:
(A) Issue a notice of availability and brief description of the
proposed amendment to the ROD in a major local newspaper of general
circulation;
(B) Make the proposed amendment to the ROD and information
supporting the decision available for public comment;
(C) Provide a reasonable opportunity, not less than 30 calendar
days, for submission of written or oral comments on the amendment to the
ROD. Upon timely request, the lead agency will extend the public comment
period by a minimum of 30 additional days;
(D) Provide the opportunity for a public meeting to be held during
the public comment period at or near the facility at issue;
(E) Keep a transcript of comments received at the public meeting
held during the public comment period;
(F) Include in the amended ROD a brief explanation of the amendment
and the response to each of the significant comments, criticisms, and
new relevant information submitted during the public comment period;
(G) Publish a notice of the availability of the amended ROD in a
major local newspaper of general circulation; and
(H) Make the amended ROD and supporting information available to the
public in the administrative record and information repository prior to
the commencement of the remedial action affected by the amendment.
(3) After the completion of the final engineering design, the lead
agency shall issue a fact sheet and provide, as appropriate, a public
briefing prior to the initiation of the remedial action.
(d) Contractor conflict of interest. (1) For Fund-financed RD/RA and
O&M activities, the lead agency shall:
(i) Include appropriate language in the solicitation requiring
potential prime contractors to submit information on their status, as
well as the status of their subcontractors, parent companies, and
affiliates, as potentially responsible parties at the site.
(ii) Require potential prime contractors to certify that, to the
best of their knowledge, they and their potential subcontractors, parent
companies, and affiliates have disclosed all information described in
Sec. 300.435(d)(1)(i) or that no such information exists, and that any
such information discovered after submission of their bid or proposal or
contract award will be disclosed immediately.
(2) Prior to contract award, the lead agency shall evaluate the
information provided by the potential prime contractors and:
(i) Determine whether they have conflicts of interest that could
significantly impact the performance of the contract or the liability of
potential prime contractors or subcontractors.
(ii) If a potential prime contractor or subcontractor has a conflict
of interest that cannot be avoided or otherwise resolved, and using that
potential prime contractor or subcontractor to conduct RD/RA or O&M work
under a Fund-financed action would not be in the best interests of the
state or federal government, an offeror or bidder contemplating use of
that prime contractor or subcontractor may be declared nonresponsible or
ineligible for award in accordance with appropriate acquisition
regulations, and the contract may be awarded to the next eligible
offeror or bidder.
(e) Recontracting. (1) If a Fund-financed contract must be
terminated because additional work outside the scope of the contract is
needed, EPA is authorized to take appropriate steps to continue interim
RAs as necessary to reduce risks to public health and the environment.
Appropriate steps may include extending an existing contract for a
federal-lead RA or amending a cooperative agreement for a state-lead RA.
Until the lead agency can reopen the bidding process and recontract to
complete the RA, EPA may take such appropriate steps as described above
to cover interim work to reduce such risks, where:
(i) Additional work is found to be needed as a result of such
unforeseen situations as newly discovered sources, types, or quantities
of hazardous substances at a facility; and
(ii) Performance of the complete RA requires the lead agency to
rebid the contract because the existing contract
[[Page 82]]
does not encompass this newly discovered work.
(2) The cost of such interim actions shall not exceed $2 million.
(f) Operation and maintenance. (1) Operation and maintenance (O&M)
measures are initiated after the remedy has achieved the remedial action
objectives and remediation goals in the ROD, and is determined to be
operational and functional, except for ground- or surface-water
restoration actions covered under Sec. 300.435(f)(4). A state must
provide its assurance to assume responsibility for O&M, including, where
appropriate, requirements for maintaining institutional controls, under
Sec. 300.510(c).
(2) A remedy becomes ``operational and functional'' either one year
after construction is complete, or when the remedy is determined
concurrently by EPA and the state to be functioning properly and is
performing as designed, whichever is earlier. EPA may grant extensions
to the one-year period, as appropriate.
(3) For Fund-financed remedial actions involving treatment or other
measures to restore ground- or surface-water quality to a level that
assures protection of human health and the environment, the operation of
such treatment or other measures for a period of up to 10 years after
the remedy becomes operational and functional will be considered part of
the remedial action. Activities required to maintain the effectiveness
of such treatment or measures following the 10-year period, or after
remedial action is complete, whichever is earlier, shall be considered
O&M. For the purposes of federal funding provided under CERCLA section
104(c)(6), a restoration activity will be considered administratively
``complete'' when:
(i) Measures restore ground- or surface-water quality to a level
that assures protection of human health and the environment;
(ii) Measures restore ground or surface water to such a point that
reductions in contaminant concentrations are no longer significant; or
(iii) Ten years have elapsed, whichever is earliest.
(4) The following shall not be deemed to constitute treatment or
other measures to restore contaminated ground or surface water under
Sec. 300.435(f)(3):
(i) Source control maintenance measures; and
(ii) Ground- or surface-water measures initiated for the primary
purpose of providing a drinking-water supply, not for the purpose of
restoring ground water.
Sec. 300.440 Procedures for planning and implementing off-site
response actions.
(a) Applicability. (1) This section applies to any remedial or
removal action involving the off-site transfer of any hazardous
substance, pollutant, or contaminant as defined under CERCLA sections
101 (14) and (33) (``CERCLA waste'') that is conducted by EPA, States,
private parties, or other Federal agencies, that is Fund-financed and/or
is taken pursuant to any CERCLA authority, including cleanups at Federal
facilities under section 120 of CERCLA, and cleanups under section 311
of the Clean Water Act (except for cleanup of petroleum exempt under
CERCLA). Applicability extends to those actions taken jointly under
CERCLA and another authority.
(2) In cases of emergency removal actions under CERCLA, emergency
actions taken during remedial actions, or response actions under section
311 of the Clean Water Act where the release poses an immediate and
significant threat to human health and the environment, the On-Scene
Coordinator (OSC) may determine that it is necessary to transfer CERCLA
waste off-site without following the requirements of this section.
(3) This section applies to CERCLA wastes from cleanup actions based
on CERCLA decision documents signed or consent decrees lodged after
October 17, 1986 (``post-SARA CERCLA wastes'') as well as those based on
CERCLA decision documents signed and consent decrees lodged prior to
October 17, 1986 (``pre-SARA CERCLA wastes''). Pre-SARA and post-SARA
CERCLA wastes are subject to the same acceptability criteria in Sec.
300.440(b)(1) and (2).
(4) EPA (usually the EPA Regional Office) will determine the
acceptability under this section of any facility selected for the
treatment, storage, or
[[Page 83]]
disposal of CERCLA waste. EPA will determine if there are relevant
releases or relevant violations at a facility prior to the facility's
initial receipt of CERCLA waste. A facility which has previously been
evaluated and found acceptable under this rule (or the preceding policy)
is acceptable until the EPA Regional Office notifies the facility
otherwise pursuant to Sec. 300.440(d).
(5) Off-site transfers of those laboratory samples and treatability
study CERCLA wastes from CERCLA sites set out in paragraphs (a)(5)(i)
through (iii) of this section, are not subject to the requirements of
this section. However, those CERCLA wastes may not be transferred back
to the CERCLA site unless the Remedial Project Manager or OSC assures
the proper management of the CERCLA waste samples or residues and gives
permission to the laboratory or treatment facility for the samples and/
or residues to be returned to the site.
(i) Samples of CERCLA wastes sent to a laboratory for
characterization;
(ii) RCRA hazardous wastes that are being transferred from a CERCLA
site for treatability studies and that meet the requirements for an
exemption for RCRA under 40 CFR 261.4(e); and
(iii) Non-RCRA wastes that are being transferred from a CERCLA site
for treatability studies and that are below the quantity threshold
established at 40 CFR 261.4(e)(2).
(b) Acceptability criteria--(1) Facility compliance. (i) A facility
will be deemed in compliance for the purpose of this rule if there are
no relevant violations at or affecting the unit or units receiving
CERCLA waste:
(A) For treatment to standards specified in 40 CFR part 268, subpart
D, including any pre-treatment or storage units used prior to treatment;
(B) For treatment to substantially reduce its mobility, toxicity or
persistence in the absence of a defined treatment standard, including
any pre-treatment or storage units used prior to treatment; or
(C) For storage or ultimate disposal of CERCLA waste not treated to
the previous criteria at the same facility.
(ii) Relevant violations include significant deviations from
regulations, compliance order provisions, or permit conditions designed
to: ensure that CERCLA waste is destined for and delivered to authorized
facilities; prevent releases of hazardous waste, hazardous constituents,
or hazardous substances to the environment; ensure early detection of
such releases; or compel corrective action for releases. Criminal
violations which result in indictment are also relevant violations. In
addition, violations of the following requirements may be considered
relevant:
(A) Applicable subsections of sections 3004 and 3005 of RCRA or,
where applicable, other Federal laws (such as the Toxic Substances
Control Act and subtitle D of RCRA);
(B) Applicable sections of State environmental laws; and
(C) In addition, land disposal units at RCRA subtitle C facilities
receiving RCRA hazardous waste from response actions authorized or
funded under CERCLA must be in compliance with RCRA section 3004(o)
minimum technology requirements. Exceptions may be made only if the unit
has been granted a waiver from these requirements under 40 CFR 264.301.
(2) Releases. (i) Release is defined in Sec. 300.5 of this part.
Releases under this section do not include:
(A) De minimis releases;
(B) Releases permitted under Federal programs or under Federal
programs delegated to the States (Federally permitted releases are
defined in Sec. 300.5), except to the extent that such releases are
found to pose a threat to human health and the environment; or
(C) Releases to the air that do not exceed standards promulgated
pursuant to RCRA section 3004(n), or absent such standards, or where
such standards do not apply, releases to the air that do not present a
threat to human health or the environment.
(ii) Releases from units at a facility designated for off-site
transfer of CERCLA waste must be addressed as follows:
(A) Receiving units at RCRA subtitle C facilities. CERCLA wastes may
be transferred to an off-site unit regulated under subtitle C of RCRA,
including a facility regulated under the permit-by-rule provisions of 40
CFR 270.60 (a), (b) or (c), only if that unit is not releasing
[[Page 84]]
any hazardous waste, hazardous constituent, or hazardous substance into
the ground water, surface water, soil or air.
(B) Other units at RCRA subtitle C land disposal facilities. CERCLA
wastes may not be transferred to any unit at a RCRA subtitle C land
disposal facility where a non-receiving unit is releasing any hazardous
waste, hazardous constituent, or hazardous substance into the ground
water, surface water, soil, or air, unless that release is controlled by
an enforceable agreement for corrective action under subtitle C of RCRA
or other applicable Federal or State authority. For purposes of this
section, a RCRA ``land disposal facility'' is any RCRA facility at which
a land disposal unit is located, regardless of whether a land disposal
unit is the receiving unit.
(C) Other units at RCRA subtitle C treatment, storage, and permit-
by-rule facilities. CERCLA wastes may not be transferred to any unit at
a RCRA subtitle C treatment, storage or permit-by-rule facility, where a
release of any hazardous waste, hazardous constituent, or hazardous
substance from non-receiving units poses a significant threat to public
health or the environment, unless that release is controlled by an
enforceable agreement for corrective action under subtitle C of RCRA or
other applicable Federal or State authority.
(D) All other facilities. CERCLA wastes should not be transferred to
any unit at an other-than-RCRA subtitle C facility if the EPA Regional
Office has information indicating that an environmentally significant
release of hazardous substances has occurred at that facility, unless
the release is controlled by an enforceable agreement for corrective
action under an applicable Federal or State authority.
(iii) Releases are considered to be ``controlled'' for the purpose
of this section as provided in Sec. 300.440 (f)(3)(iv) and (f)(3)(v). A
release is not considered ``controlled'' for the purpose of this section
during the pendency of administrative or judicial challenges to
corrective action requirements, unless the facility has made the
requisite showing under Sec. 300.440(e).
(c) Basis for determining acceptability. (1) If a State finds that a
facility within its jurisdiction is operating in non-compliance with
state law requirements including the requirements of any Federal program
for which the State has been authorized, EPA will determine, after
consulting with the State as appropriate, if the violation is relevant
under the rule and if so, issue an initial determination of
unacceptability.
(2) If a State finds that releases are occurring at a facility
regulated under State law or a Federal program for which the State is
authorized, EPA will determine, after consulting with the State as
appropriate, if the release is relevant under the rule and if so, issue
an initial determination of unacceptability.
(3) EPA may also issue initial determinations of unacceptability
based on its own findings. EPA can undertake any inspections, data
collection and/or assessments necessary. EPA will then notify with the
State about the results and issue a determination notice if a relevant
violation or release is found.
(d) Determination of unacceptability. (1) Upon initial determination
by the EPA Regional Office that a facility being considered for the off-
site transfer of any CERCLA waste does not meet the criteria for
acceptability stated in Sec. 300.440(b), the EPA Region shall notify
the owner/operator of such facility, and the responsible agency in the
State in which the facility is located, of the unacceptability finding.
The notice will be sent by certified and first-class mail, return
receipt requested. The certified notice, if not acknowledged by the
return receipt card, should be considered to have been received by the
addressee if properly sent by regular mail to the last address known to
the EPA Regional Office.
(2) The notice shall generally: state that based on available
information from a RCRA Facility Assessment (RFA), inspection, or other
data sources, the facility has been found not to meet the requirements
of Sec. 300.440; cite the specific acts, omissions, or conditions which
form the basis of these findings; and inform the owner/operator of the
procedural recourse available under this regulation.
[[Page 85]]
(3) A facility which was previously evaluated and found acceptable
under this rule (or the preceding policy) may continue to receive CERCLA
waste for 60 calendar days after the date of issuance of the notice,
unless otherwise determined in accordance with paragraphs (d)(8) or
(d)(9) of this section.
(4) If the owner or operator of the facility in question submits a
written request for an informal conference with the EPA Regional Office
within 10 calendar days from the issuance of the notice, the EPA
Regional Office shall provide the opportunity for such conference no
later than 30 calendar days after the date of the notice, if possible,
to discuss the basis for the underlying violation or release
determination, and its relevance to the facility's acceptability to
receive CERCLA cleanup wastes. State representatives may attend the
informal conference, submit written comments prior to the informal
conference, and/or request additional meetings with the EPA Region,
relating to the unacceptability issue during the determination process.
If no State representative is present, EPA shall notify the State of the
outcome of the conference. An owner/operator may submit written comments
by the 30th day after issuance of the notice, in addition to or instead
of requesting an informal conference.
(5) If the owner or operator neither requests an informal conference
nor submits written comments, the facility becomes unacceptable to
receive CERCLA waste on the 60th day after the notice is issued (or on
such other date designated under paragraph (d)(9) of this section). The
facility will remain unacceptable until such time as the EPA Regional
Office notifies the owner or operator otherwise.
(6) If an informal conference is held or written comments are
received, the EPA Region shall decide whether or not the information
provided is sufficient to show that the facility is operating in
physical compliance with respect to the relevant violations cited in the
initial notice of unacceptability, and that all relevant releases have
been eliminated or controlled, as required in paragraph (b)(2) of this
section, such that a determination of acceptability would be
appropriate. EPA will notify the owner/operator in writing whether or
not the information provided is sufficient to support a determination of
acceptability. Unless EPA determines that information provided by the
owner/operator and the State is sufficient to support a determination of
acceptability, the facility becomes unacceptable on the 60th calendar
day after issuance of the original notice of unacceptability (or other
date established pursuant to paragraphs (d)(8) or (d)(9) of this
section).
(7) Within 10 days of hearing from the EPA Regional Office after the
informal conference or the submittal of written comments, the owner/
operator or the State may request a reconsideration of the
unacceptability determination by the EPA Regional Administrator (RA).
Reconsideration may be by review of the record, by conference, or by
other means deemed appropriate by the Regional Administrator;
reconsideration does not automatically stay the determination beyond the
60-day period. The owner/operator will receive notice in writing of the
decision of the RA.
(8) The EPA Regional Administrator may decide to extend the 60-day
period if more time is required to review a submission. The facility
owner/operator shall be notified in writing if the Regional
Administrator extends the 60 days.
(9) The EPA Regional Office may decide that a facility's
unacceptability is immediately effective (or effective in less than 60
days) in extraordinary situations such as, but not limited to,
emergencies at the facility or egregious violations. The EPA Region
shall notify the facility owner/operator of the date of unacceptability,
and may modify timeframes for comments and other procedures accordingly.
(e) Unacceptability during administrative and judicial challenges of
corrective action decisions. For a facility with releases that are
subject to a corrective action permit, order, or decree, an
administrative or judicial challenge to the corrective action (or a
challenge to a permit modification calling for additional corrective
action) shall not be considered to be part of a corrective action
``program'' controlling those releases and shall not act to stay a
determination of unacceptability under this
[[Page 86]]
rule. However, such facility may remain acceptable to receive CERCLA
waste during the pendency of the appeal or litigation if:
(1) It satisfies the EPA Regional Office that adequate interim
corrective action measures will continue at the facility; or
(2) It demonstrates to the EPA Regional Office the absence of a need
to take corrective action during the short-term, interim period.
Either demonstration may be made during the 60-day review period in the
context of the informal conference and RA reconsideration.
(f) Re-evaluating unacceptability. If, after notification of
unacceptability and the opportunity to confer as described in Sec.
300.440(d), the facility remains unacceptable, the facility can regain
acceptability. A facility found to be unacceptable to receive CERCLA
wastes based on relevant violations or releases may regain acceptability
if the following conditions are met:
(1) Judgment on the merits. The facility has prevailed on the merits
in an administrative or judicial challenge to the finding of
noncompliance or uncontrolled releases upon which the unacceptability
determination was based.
(2) Relevant violations. The facility has demonstrated to the EPA
Region its return to physical compliance for the relevant violations
cited in the notice.
(3) Releases. The facility has demonstrated to the EPA Region that:
(i) All releases from receiving units at RCRA subtitle C facilities
have been eliminated and prior contamination from such releases is
controlled by a corrective action program approved under subtitle C of
RCRA;
(ii) All releases from other units at RCRA subtitle C land disposal
facilities are controlled by a corrective action program approved under
subtitle C of RCRA;
(iii) All releases from other units at RCRA subtitle C treatment and
storage facilities do not pose a significant threat to human health or
the environment, or are controlled by a corrective action program
approved under subtitle C of RCRA.
(iv) A RCRA subtitle C corrective action program may be incorporated
into a permit, order, or decree, including the following: a corrective
action order under RCRA section 3008(h), section 7003 or section 3013, a
RCRA permit under 40 CFR 264.100 or 264.101, or a permit under an
equivalent authority in a State authorized for corrective action under
RCRA section 3004(u). Releases will be deemed controlled upon issuance
of the order, permit, or decree which initiates and requires completion
of one or more of the following: a RCRA Facility Investigation, a RCRA
Corrective Measures Study, and/or Corrective Measures Implementation.
The release remains controlled as long as the facility is in compliance
with the order, permit, or decree, and enters into subsequent agreements
for implementation of additional corrective action measures when
necessary, except during periods of administrative or judicial
challenges, when the facility must make a demonstration under Sec.
300.440(e) in order to remain acceptable.
(v) Facilities with releases regulated under other applicable
Federal laws, or State laws under a Federally-delegated program may
regain acceptability under this section if the releases are deemed by
the EPA Regional Office not to pose a threat to human health or the
environment, or if the facility enters into an enforceable agreement
under those laws to conduct corrective action activities to control
releases. Releases will be deemed controlled upon the issuance of an
order, permit, or decree which initiates and requires one or more of the
following: a facility investigation, a corrective action study, and/or
corrective measures implementation. The release remains controlled as
long as the facility is in compliance with the order, permit, or decree,
and enters into subsequent agreements for implementation of additional
corrective measures when necessary, except during periods of
administrative or judicial challenges, when the facility must make a
demonstration under Sec. 300.440(e) in order to remain acceptable.
(4) Prior to the issuance of a determination that a facility has
returned to acceptability, the EPA Region shall
[[Page 87]]
notify the State in which the facility is located, and provide an
opportunity for the State to discuss the facility's acceptability status
with EPA.
(5) An unacceptable facility may be reconsidered for acceptability
whenever the EPA Regional Office finds that the facility fulfills the
criteria stated in Sec. 300.440(b). Upon such a finding, the EPA
Regional Office shall notify the facility and the State in writing.
[58 FR 49215, Sept. 22, 1993]
Subpart F_State Involvement in Hazardous Substance Response
Source: 55 FR 8853, Mar. 8, 1990, unless otherwise noted.
Sec. 300.500 General.
(a) EPA shall ensure meaningful and substantial state involvement in
hazardous substance response as specified in this subpart. EPA shall
provide an opportunity for state participation in removal, pre-remedial,
remedial, and enforcement response activities. EPA shall encourage
states to enter into an EPA/state Superfund Memorandum of Agreement
(SMOA) under Sec. 300.505 to increase state involvement and strengthen
the EPA/state partnership.
(b) EPA shall encourage states to participate in Fund-financed
response in two ways. Pursuant to Sec. 300.515(a), states may either
assume the lead through a cooperative agreement for the response action
or may be the support agency in EPA-lead remedial response. Section
300.515 sets forth requirements for state involvement in EPA-lead
remedial and enforcement response and also addresses comparable
requirements for EPA involvement in state-lead remedial and enforcement
response. Section 300.520 specifies requirements for state involvement
in EPA-lead enforcement negotiations. Section 300.525 specifies
requirements for state involvement in removal actions. In addition to
the requirements set forth in this subpart, 40 CFR part 35, subpart O,
``Cooperative Agreements and Superfund State Contracts for Superfund
Response Actions,'' contains further requirements for state
participation during response.
Sec. 300.505 EPA/State Superfund Memorandum of Agreement (SMOA).
(a) The SMOA may establish the nature and extent of EPA and state
interaction during EPA-lead and state-lead response (Indian tribes
meeting the requirements of Sec. 300.515(b) may be treated as states
for purposes of this section). EPA shall enter into SMOA discussions if
requested by a state. The following may be addressed in a SMOA:
(1) The EPA/state or Indian tribe relationship for removal, pre-
remedial, remedial, and enforcement response, including a description of
the roles and the responsibilities of each.
(2) The general requirements for EPA oversight. Oversight
requirements may be more specifically defined in cooperative agreements.
(3) The general nature of lead and support agency interaction
regarding the review of key documents and/or decision points in removal,
pre-remedial, remedial, and enforcement response. The requirements for
EPA and state review of each other's key documents when each is serving
as the support agency shall be equivalent to the extent practicable.
Review times agreed to in the SMOA must also be documented in site-
specific cooperative agreements or Superfund state contracts in order to
be binding.
(4) Procedures for modification of the SMOA (e.g., if EPA and a
state agree that the lead and support agency roles and responsibilities
have changed, or if modifications are required to achieve desired
goals).
(b) The SMOA and any modifications thereto shall be executed by the
EPA Regional Administrator and the head of the state agency designated
as lead agency for state implementation of CERCLA.
(c) Site-specific agreements entered into pursuant to section
104(d)(1) of CERCLA shall be developed in accordance with 40 CFR part
35, subpart O. The SMOA shall not supersede such agreements.
(d)(1) EPA and the state shall consult annually to determine
priorities and make lead and support agency designations for removal,
pre-remedial, remedial, and enforcement response to be conducted during
the next fiscal year and to discuss future priorities and
[[Page 88]]
long-term requirements for response. These consultations shall include
the exchange of information on both Fund- and non-Fund-financed response
activities. The SMOA may describe the timeframe and process for the EPA/
state consultation.
(2) The following activities shall be discussed in the EPA/state
consultations established in the SMOA, or otherwise initiated and
documented in writing in the absence of a SMOA, on a site-specific basis
with EPA and the state identifying the lead agency for each response
action discussed:
(i) Pre-remedial response actions, including preliminary assessments
and site inspections;
(ii) Hazard Ranking System scoring and NPL listing and deletion
activities;
(iii) Remedial phase activities, including remedial investigation/
feasibility study, identification of potential applicable or relevant
and appropriate requirements (ARARs) under federal and state
environmental laws and, as appropriate, other advisories, criteria, or
guidance to be considered (TBCs), proposed plan, ROD, remedial design,
remedial action, and operation and maintenance;
(iv) Potentially responsible party (PRP) searches, notices to PRPs,
response to information requests, PRP negotiations, oversight of PRPs,
other enforcement actions pursuant to state law, and activities where
the state provides support to EPA;
(v) Compilation and maintenance of the administrative record for
selection of a response action as required by subpart I of this part;
(vi) Related site support activities;
(vii) State ability to share in the cost and timing of payments; and
(viii) General CERCLA implementation activities.
(3) If a state is designated as the lead agency for a non-Fund-
financed action at an NPL site, the SMOA shall be supplemented by site-
specific enforcement agreements between EPA and the state which specify
schedules and EPA involvement.
(4) In the absence of a SMOA, EPA and the state shall comply with
the requirements in Sec. 300.515(h). If the SMOA does not address all
of the requirements specified in Sec. 300.515(h), EPA and the state
shall comply with any unaddressed requirements in that section.
Sec. 300.510 State assurances.
(a) A Fund-financed remedial action undertaken pursuant to CERCLA
section 104(a) cannot proceed unless a state provides its applicable
required assurances. The assurances must be provided by the state prior
to the initiation of remedial action pursuant to a Superfund state
contract for EPA-lead (or political subdivision-lead) remedial action or
pursuant to a cooperative agreement for a state-lead remedial action.
The SMOA may not be used for this purpose. Federally recognized Indian
tribes are not required to provide CERCLA section 104(c)(3) assurances
for Fund-financed response actions. Further requirements pertaining to
state, political subdivision, and federally recognized Indian tribe
involvement in CERCLA response are found in 40 CFR part 35, subpart O.
(b)(1) The state is not required to share in the cost of state- or
EPA-lead Fund-financed removal actions (including remedial planning
activities associated with remedial actions) conducted pursuant to
CERCLA section 104 unless the facility was operated by the state or a
political subdivision thereof at the time of disposal of hazardous
substances therein and a remedial action is ultimately undertaken at the
site. Such remedial planning activities include, but are not limited to,
remedial investigations (RIs), feasibility studies (FSs), and remedial
design (RD). States shall be required to share 50 percent, or greater,
in the cost of all Fund-financed response actions if the facility was
publicly operated at the time of the disposal of hazardous substances.
For other facilities, except federal facilities, the state shall be
required to share 10 percent of the cost of the remedial action.
(2) CERCLA section 104(c)(5) provides that EPA shall grant a state
credit for reasonable, documented, direct, out-of-pocket, non-federal
expenditures subject to the limitations specified in CERCLA section
104(c)(5). For a state to apply credit toward its cost share, it must
enter into a cooperative agreement or Superfund state contract. The
[[Page 89]]
state must submit as soon as possible, but no later than at the time
CERCLA section 104 assurances are provided for a remedial action, its
accounting of eligible credit expenditures for EPA verification.
Additional credit requirements are contained in 40 CFR part 35, subpart
O.
(3) Credit may be applied to a state's future cost share
requirements at NPL sites for response expenditures or obligations
incurred by the state or a political subdivision from January 1, 1978 to
December 11, 1980, and for the remedial action expenditures incurred
only by the state after October 17, 1986.
(4) Credit that exceeds the required cost share at the site for
which the credit is granted may be transferred to another site to offset
a state's required remedial action cost share.
(c)(1) Prior to a Fund-financed remedial action, the state must also
provide its assurance in accordance with CERCLA section 104(c)(3)(A) to
assume responsibility for operation and maintenance of implemented
remedial actions for the expected life of such actions. In addition,
when appropriate, as part of the O&M assurance, the state must assure
that any institutional controls implemented as part of the remedial
action at a site are in place, reliable, and will remain in place after
the initiation of O&M. The state and EPA shall consult on a plan for
operation and maintenance prior to the initiation of a remedial action.
(2) After a joint EPA/State inspection of the implemented Fund-
financed remedial action under Sec. 300.515(g), EPA may share, for any
extension period established in Sec. 300.435(f)(2), in the cost of the
operation of the remedy to ensure that the remedy is operational and
functional. In the case of restoration of ground or surface water, EPA
shall share in the cost of the State's operation of ground- or surface-
water restoration remedial actions as specified in Sec. 300.435(f)(3).
(d) In accordance with CERCLA sections 104 (c)(3)(B) and 121(d)(3),
if the remedial action requires off-site storage, destruction,
treatment, or disposal, the state must provide its assurance before the
remedial action begins on the availability of a hazardous waste disposal
facility that is in compliance with CERCLA section 121(d)(3) and is
acceptable to EPA.
(e)(1) In accordance with CERCLA section 104(c)(9), EPA shall not
provide any remedial action pursuant to CERCLA section 104 until the
state in which the release occurs enters into a cooperative agreement or
Superfund state contract with EPA providing assurances deemed adequate
by EPA that the state will assure the availability of hazardous waste
treatment or disposal facilities which:
(i) Have adequate capacity for the destruction, treatment, or secure
disposition of all hazardous wastes that are reasonably expected to be
generated within the state during the 20-year period following the date
of such cooperative agreement or Superfund state contract and to be
destroyed, treated, or disposed;
(ii) Are within the state, or outside the state in accordance with
an interstate agreement or regional agreement or authority;
(iii) Are acceptable to EPA; and
(iv) Are in compliance with the requirements of Subtitle C of the
Solid Waste Disposal Act.
(2) This rule does not address whether or not Indian tribes are
states for purposes of this paragraph (e).
(f) EPA may determine that an interest in real property must be
acquired in order to conduct a response action. However, as provided in
CERCLA section 104(j)(2), EPA may acquire an interest in real estate in
order to conduct a remedial action only if the State in which the
interest to be acquired is located provides assurances, through a
contract, cooperative agreement or otherwise, that the State will accept
transfer of the interest upon completion of the remedial action. For
purposes of this paragraph, ``completion of the remedial action'' is the
point at which operation and maintenance (O&M) measures would be
initiated pursuant to Sec. 300.435(f). The State may accept a transfer
of interest at an earlier point in time if agreed upon in writing by the
State and EPA. Indian tribe assurances are to be provided as set out at
40 CFR part 35, subpart O, Sec. 35.6110(b)(2).
[55 FR 8853, Mar. 8, 1990, as amended at 59 FR 35854, July 14, 1994]
[[Page 90]]
Sec. 300.515 Requirements for state involvement in remedial and
enforcement response.
(a) General. (1) States are encouraged to undertake actions
authorized under subpart E. Section 104(d)(1) of CERCLA authorizes EPA
to enter into cooperative agreements or contracts with a state,
political subdivision, or a federally recognized Indian tribe to carry
out Fund-financed response actions authorized under CERCLA, when EPA
determines that the state, the political subdivision, or federally
recognized Indian tribe has the capability to undertake such actions.
EPA will use a cooperative agreement to transfer funds to those entities
to undertake Fund-financed response activities. The requirements for
states, political subdivisions, or Indian tribes to receive funds as a
lead or support agency for response are addressed at 40 CFR part 35,
subpart O.
(2) For EPA-lead Fund-financed remedial planning activities,
including, but not limited to, remedial investigations, feasibility
studies, and remedial designs, the state agency acceptance of the
support agency role during an EPA-lead response shall be documented in a
letter, SMOA, or cooperative agreement. Superfund state contracts are
unnecessary for this purpose.
(3) Cooperative agreements and Superfund state contracts are only
appropriate for non-Fund-financed response actions if a state intends to
seek credit for remedial action expenses under Sec. 300.510.
(b) Indian tribe involvement during response. To be afforded
substantially the same treatment as states under section 104 of CERCLA,
the governing body of the Indian tribe must:
(1) Be federally recognized; and
(2) Have a tribal governing body that is currently performing
governmental functions to promote the health, safety, and welfare of the
affected population or to protect the environment within a defined
geographic area; and
(3) Have jurisdiction over a site at which Fund-financed response,
including pre-remedial activities, is contemplated.
(c) State involvement in PA/SI and National Priorities List process.
EPA shall ensure state involvement in the listing and deletion process
by providing states opportunities for review, consultation, or
concurrence specified in this section.
(1) EPA shall consult with states as appropriate on the information
to be used in developing HRS scores for releases.
(2) EPA shall, to the extent feasible, provide the state 30 working
days to review releases which were scored by EPA and which will be
considered for placement on the National Priorities List (NPL).
(3) EPA shall provide the state 30 working days to review and concur
on the Notice of Intent to Delete a release from the NPL. Section
300.425 describes the EPA/state consultation and concurrence process for
deleting releases from the NPL.
(d) State involvement in RI/FS process. A key component of the EPA/
state partnership shall be the communication of potential federal and
state ARARs and, as appropriate, other pertinent advisories, criteria,
or guidance to be considered (TBCs).
(1) In accordance with Sec. Sec. 300.400(g) and 300.430, the lead
and support agencies shall identify their respective potential ARARs and
communicate them to each other in a timely manner, i.e., no later than
the early stages of the comparative analysis described in Sec.
300.430(e)(9), such that sufficient time is available for the lead
agency to consider and incorporate all potential ARARs without
inordinate delays and duplication of effort. The lead and support
agencies may also identify TBCs and communicate them in a timely manner.
(2) When a state and EPA have entered into a SMOA, the SMOA may
specify a consultation process which requires the lead agency to solicit
potential ARARs at specified points in the remedial planning and remedy
selection processes. At a minimum, the SMOA shall include the points
specified in Sec. 300.515(h)(2). The SMOA shall specify timeframes for
support agency response to lead agency requests to ensure that potential
ARARs are identified and communicated in a timely manner. Such
timeframes must also be documented in site-specific agreements. The SMOA
may also discuss
[[Page 91]]
identification and communication of TBCs.
(3) If EPA in its statement of a proposed plan intends to waive any
state-identified ARARs, or does not agree with the state that a certain
state standard is an ARAR, it shall formally notify the state when it
submits the RI/FS report for state review or responds to the state's
submission of the RI/FS report.
(4) EPA shall respond to state comments on waivers from or
disagreements about state ARARs, as well as the preferred alternative
when making the RI/FS report and proposed plan available for public
comment.
(e) State involvement in selection of remedy. (1) Both EPA and the
state shall be involved in preliminary discussions of the alternatives
addressed in the FS prior to preparation of the proposed plan and ROD.
At the conclusion of the RI/FS, the lead agency, in conjunction with the
support agency, shall develop a proposed plan. The support agency shall
have an opportunity to comment on the plan. The lead agency shall
publish a notice of availability of the RI/FS report and a brief
analysis of the proposed plan pursuant to Sec. 300.430(e) and (f).
Included in the proposed plan shall be a statement that the lead and
support agencies have reached agreement or, where this is not the case,
a statement explaining the concerns of the support agency with the lead
agency's proposed plan. The state may not publish a proposed plan that
EPA has not approved. EPA may assume the lead from the state if
agreement cannot be reached.
(2)(i) EPA and the state shall identify, at least annually, sites
for which RODs will be prepared during the next fiscal year, in
accordance with Sec. 300.515(h)(1). For all EPA-lead sites, EPA shall
prepare the ROD and provide the state an opportunity to concur with the
recommended remedy. For Fund-financed state-lead sites, EPA and the
state shall designate sites, in a site-specific agreement, for which the
state shall prepare the ROD and seek EPA's concurrence and adoption of
the remedy specified therein, and sites for which EPA shall prepare the
ROD and seek the state's concurrence. EPA and the state may designate
sites for which the state shall prepare the ROD for non-Fund-financed
state-lead enforcement response actions (i.e., actions taken under state
law) at an NPL site. The state may seek EPA's concurrence in the remedy
specified therein. Either EPA or the state may choose not to designate a
site as state-lead.
(ii) State concurrence on a ROD is not a prerequisite to EPA's
selecting a remedy, i.e., signing a ROD, nor is EPA's concurrence a
prerequisite to a state's selecting a remedy at a non-Fund-financed
state-lead enforcement site under state law. Unless EPA's Assistant
Administrator for Solid Waste and Emergency Response or Regional
Administrator concurs in writing with a state-prepared ROD, EPA shall
not be deemed to have approved the state decision. A state may not
proceed with a Fund-financed response action unless EPA has first
concurred in and adopted the ROD. Section 300.510(a) specifies
limitations on EPA's proceeding with a remedial action without state
assurances.
(iii) The lead agency shall provide the support agency with a copy
of the signed ROD for remedial actions to be conducted pursuant to
CERCLA.
(iv) On state-lead sites identified for EPA concurrence, the state
generally shall be expected to maintain its lead agency status through
the completion of the remedial action.
(f) Enhancement of remedy. (1) A state may ask EPA to make changes
in or expansions of a remedial action selected under subpart E.
(i) If EPA finds that the proposed change or expansion is necessary
and appropriate to the EPA-selected remedial action, the remedy may be
modified (consistent with Sec. 300.435(c)(2)) and any additional costs
paid as part of the remedial action.
(ii) If EPA finds that the proposed change or expansion is not
necessary to the selected remedial action, but would not conflict or be
inconsistent with the EPA-selected remedy, EPA may agree to integrate
the proposed change or expansion into the planned CERCLA remedial work
if:
(A) The state agrees to fund the entire additional cost associated
with the change or expansion; and
[[Page 92]]
(B) The state agrees to assume the lead for supervising the state-
funded component of the remedy or, if EPA determines that the state-
funded component cannot be conducted as a separate phase or activity,
for supervising the remedial design and construction of the entire
remedy.
(2) Where a state does not concur in a remedial action secured by
EPA under CERCLA section 106, and the state desires to have the remedial
action conform to an ARAR that has been waived under Sec.
300.430(f)(1)(ii)(C), a state may seek to have that remedial action so
conform, in accordance with the procedures set out in CERCLA section
121(f)(2) .
(g) State involvement in remedial design/remedial action. The extent
and nature of state involvement during remedial design and remedial
action shall be specified in site-specific cooperative agreements or
Superfund state contracts, consistent with 40 CFR part 35, subpart O.
For Fund-financed remedial actions, the lead and support agencies shall
conduct a joint inspection at the conclusion of construction of the
remedial action to determine that the remedy has been constructed in
accordance with the ROD and with the remedial design.
(h) Requirements for state involvement in absence of SMOA. In the
absence of a SMOA, EPA and the state shall comply with the requirements
in Sec. 300.515(h). If the SMOA does not address all of the
requirements specified in Sec. 300.515(h), EPA and the state shall
comply with any unaddressed requirements in that section.
(1) Annual consultations. EPA shall conduct consultations with
states at least annually to establish priorities and identify and
document in writing the lead for remedial and enforcement response for
each NPL site within the state for the upcoming fiscal year. States
shall be given the opportunity to participate in long-term planning
efforts for remedial and enforcement response during these annual
consultations.
(2) Identification of ARARs and TBCs. The lead and support agencies
shall discuss potential ARARs during the scoping of the RI/FS. The lead
agency shall request potential ARARs from the support agency no later
than the time that the site characterization data are available. The
support agency shall communicate in writing those potential ARARs to the
lead agency within 30 working days of receipt of the lead agency request
for these ARARs. The lead and support agencies may also discuss and
communicate other pertinent advisories, criteria, or guidance to be
considered (TBCs). After the initial screening of alternatives has been
completed but prior to initiation of the comparative analysis conducted
during the detailed analysis phase of the FS, the lead agency shall
request that the support agency communicate any additional requirements
that are applicable or relevant and appropriate to the alternatives
contemplated within 30 working days of receipt of this request. The lead
agency shall thereafter consult the support agency to ensure that
identified ARARs and TBCs are updated as appropriate.
(3) Support agency review of lead agency documents. The lead agency
shall provide the support agency an opportunity to review and comment on
the RI/FS, proposed plan, ROD, and remedial design, and any proposed
determinations on potential ARARs and TBCs. The support agency shall
have a minimum of 10 working days and a maximum of 15 working days to
provide comments to the lead agency on the RI/FS, ROD, ARAR/TBC
determinations, and remedial design. The support agency shall have a
minimum of five working days and a maximum of 10 working days to comment
on the proposed plan.
(i) Administrative record requirements. The state, where it is the
lead agency for a Fund-financed site, shall compile and maintain the
administrative record for selection of a response action under subpart I
of this part unless specified otherwise in the SMOA.
Sec. 300.520 State involvement in EPA-lead enforcement negotiations.
(a) EPA shall notify states of response action negotiations to be
conducted by EPA with potentially responsible parties during each fiscal
year.
[[Page 93]]
(b) The state must notify EPA of such negotiations in which it
intends to participate.
(c) The state is not foreclosed from signing a consent decree if it
does not participate substantially in the negotiations.
Sec. 300.525 State involvement in removal actions.
(a) States may undertake Fund-financed removal actions pursuant to a
cooperative agreement with EPA. State-lead removal actions taken
pursuant to cooperative agreements must be conducted in accordance with
Sec. 300.415 on removal actions, and 40 CFR part 35, subpart O.
(b) States are not required under section 104(c)(3) of CERCLA to
share in the cost of a Fund-financed removal action, unless the removal
is conducted at an NPL site that was operated by a state or political
subdivision at the time of disposal of hazardous substances therein and
a Fund-financed remedial action is ultimately undertaken at the site. In
this situation, states are required to share, 50 percent or greater, in
the cost of all removal (including remedial planning) and remedial
action costs at the time of the remedial action.
(c) States are encouraged to provide for post-removal site control
as discussed in Sec. 300.415(k) for all Fund-financed removal actions.
(d) States shall be responsible for identifying potential state
ARARs for all Fund-financed removal actions and for providing such ARARs
to EPA in a timely manner for all EPA-lead removal actions.
(e) EPA shall consult with a state on all removal actions to be
conducted in that state.
Subpart G_Trustees for Natural Resources
Source: 59 FR 47450, Sept. 15, 1994, unless otherwise noted.
Sec. 300.600 Designation of federal trustees.
(a) The President is required to designate in the NCP those federal
officials who are to act on behalf of the public as trustees for natural
resources. Federal officials so designated will act pursuant to section
107(f) of CERCLA, section 311(f)(5) of the CWA, and section 1006 of the
OPA. Natural resources means land, fish, wildlife, biota, air, water,
ground water, drinking water supplies, and other such resources
belonging to, managed by, held in trust by, appertaining to, or
otherwise controlled (hereinafter referred to as ``managed or
controlled'') by the United States (including the resources of the
exclusive economic zone).
(b) The following individuals shall be the designated trustee(s) for
general categories of natural resources, including their supporting
ecosystems. They are authorized to act pursuant to section 107(f) of
CERCLA, section 311(f)(5) of the CWA, or section 1006 of the OPA when
there is injury to, destruction of, loss of, or threat to natural
resources, including their supporting ecosystems, as a result of a
release of a hazardous substance or a discharge of oil. Notwithstanding
the other designations in this section, the Secretaries of Commerce and
the Interior shall act as trustees of those resources subject to their
respective management or control.
(1) Secretary of Commerce. The Secretary of Commerce shall act as
trustee for natural resources managed or controlled by DOC and for
natural resources managed or controlled by other federal agencies and
that are found in, under, or using waters navigable by deep draft
vessels, tidally influenced waters, or waters of the contiguous zone,
the exclusive economic zone, and the outer continental shelf. However,
before the Secretary takes an action with respect to an affected
resource under the management or control of another federal agency, he
shall, whenever practicable, seek to obtain the concurrence of that
other federal agency. Examples of the Secretary's trusteeship include
the following natural resources and their supporting ecosystems: marine
fishery resources; anadromous fish; endangered species and marine
mammals; and the resources of National Marine Sanctuaries and National
Estuarine Research Reserves.
(2) Secretary of the Interior. The Secretary of the Interior shall
act as
[[Page 94]]
trustee for natural resources managed or controlled by the DOI. Examples
of the Secretary's trusteeship include the following natural resources
and their supporting ecosystems: migratory birds; anadromous fish;
endangered species and marine mammals; federally owned minerals; and
certain federally managed water resources. The Secretary of the Interior
shall also be trustee for those natural resources for which an Indian
tribe would otherwise act as trustee in those cases where the United
States acts on behalf of the Indian tribe.
(3) Secretary for the land managing agency. For natural resources
located on, over, or under land administered by the United States, the
trustee shall be the head of the department in which the land managing
agency is found. The trustees for the principal federal land managing
agencies are the Secretaries of DOI, USDA, DOD, and DOE.
(4) Head of authorized agencies. For natural resources located in
the United States but not otherwise described in this section, the
trustee shall be the head of the federal agency or agencies authorized
to manage or control those resources.
(5) Additional trustees for the Deepwater Horizon Oil Spill. The
Administrator of EPA and the Secretary of Agriculture shall act as
trustees in connection with injury to, destruction of, loss of, or loss
of use of natural resources, including their supporting ecosystems,
resulting from the Deepwater Horizon Oil Spill.
[59 FR 47450, Sept. 15, 1994, as amended at 79 FR 36431, June 27, 2014]
Sec. 300.605 State trustees.
State trustees shall act on behalf of the public as trustees for
natural resources, including their supporting ecosystems, within the
boundary of a state or belonging to, managed by, controlled by, or
appertaining to such state. For the purposes of subpart G of this part,
the definition of the term state does not include Indian tribes. The
governor of a state is encouraged to designate a state lead trustee to
coordinate all state trustee responsibilities with other trustee
agencies and with response activities of the RRT and OSC. The state's
lead trustee would designate a representative to serve as contact with
the OSC. This individual should have ready access to appropriate state
officials with environmental protection, emergency response, and natural
resource responsibilities. The EPA Administrator or USCG Commandant or
their designees may appoint the state lead trustee as a member of the
Area Committee. Response strategies should be coordinated between the
state and other trustees and the OSC for specific natural resource
locations in an inland or coastal zone and should be included in the
Fish and Wildlife and Sensitive Environments Plan annex of the ACP.
Sec. 300.610 Indian tribes.
The tribal chairmen (or heads of the governing bodies) of Indian
tribes, as defined in Sec. 300.5, or a person designated by the tribal
officials, shall act on behalf of the Indian tribes as trustees for the
natural resources, including their supporting ecosystems, belonging to,
managed by, controlled by, or appertaining to such Indian tribe, or held
in trust for the benefit of such Indian tribe, or belonging to a member
of such Indian tribe, if such resources are subject to a trust
restriction on alienation. When the tribal chairman or head of the
tribal governing body designates another person as trustee, the tribal
chairman or head of the tribal governing body shall notify the President
of such designation. Such officials are authorized to act when there is
injury to, destruction of, loss of, or threat to natural resources,
including their supporting ecosystems as a result of a release of a
hazardous substance.
Sec. 300.612 Foreign trustees.
Pursuant to section 1006 of the OPA, foreign trustees shall act on
behalf of the head of a foreign government as trustees for natural
resources belonging to, managed by, controlled by, or appertaining to
such foreign government.
Sec. 300.615 Responsibilities of trustees.
(a) Where there are multiple trustees, because of coexisting or
contiguous natural resources or concurrent jurisdictions, they should
coordinate and
[[Page 95]]
cooperate in carrying out these responsibilities.
(b) Trustees are responsible for designating to the RRTs and the
Area Committees, for inclusion in the RCP and the ACP, appropriate
contacts to receive notifications from the OSCs/RPMs of discharges or
releases.
(c)(1) Upon notification or discovery of injury to, destruction of,
loss of, or threat to natural resources, trustees may, pursuant to
section 107(f) of CERCLA, or section 311(f)(5) of the CWA, take the
following or other actions as appropriate:
(i) Conduct a preliminary survey of the area affected by the
discharge or release to determine if trust resources under their
jurisdiction are, or potentially may be, affected;
(ii) Cooperate with the OSC/RPM in coordinating assessments,
investigations, and planning;
(iii) Carry out damage assessments; or
(iv) Devise and carry out a plan for restoration, rehabilitation,
replacement, or acquisition of equivalent natural resources. In
assessing damages to natural resources, the federal, state, and Indian
tribe trustees have the option of following the procedures for natural
resource damage assessments located at 43 CFR part 11.
(2) Upon notification or discovery of injury to, destruction of,
loss of, or loss of use of, natural resources, or the potential for
such, resulting from a discharge of oil occurring after August 18, 1990,
the trustees, pursuant to section 1006 of the OPA, are to take the
following actions:
(i) In accordance with OPA section 1006(c), determine the need for
assessment of natural resource damages, collect data necessary for a
potential damage assessment, and, where appropriate, assess damages to
natural resources under their trusteeship; and
(ii) As appropriate, and subject to the public participation
requirements of OPA section 1006(c), develop and implement a plan for
the restoration, rehabilitation, replacement, or acquisition of the
equivalent, of the natural resources under their trusteeship;
(3)(i) The trustees, consistent with procedures specified in the
Fish and Wildlife and Sensitive Environments Plan Annex to the Area
Contingency Plan, shall provide timely advice on recommended actions
concerning trustee resources that are potentially affected by a
discharge of oil. This may include providing assistance to the OSC in
identifying/recommending pre-approved response techniques and in
predesignating shoreline types and areas in ACPs.
(ii) The trustees shall assure, through the lead administrative
trustee, that the OSC is informed of their activities regarding natural
resource damage assessment that may affect response operations in order
to assure coordination and minimize any interference with such
operations. The trustees shall assure, through the lead administrative
trustee, that all data from the natural resource damage assessment
activities that may support more effective operational decisions are
provided in a timely manner to the OSC.
(iii) When circumstances permit, the OSC shall share the use of
federal response resources (including but not limited to aircraft,
vessels, and booms to contain and remove discharged oil) with the
trustees, providing trustee activities do not interfere with response
actions. The lead administrative trustee facilitates effective and
efficient communication between the OSC and the other trustees during
response operations and is responsible for applying to the OSC for non-
monetary federal response resources on behalf of all trustees. The lead
administrative trustee is also responsible for applying to the NPFC for
funding for initiation of damage assessment for injuries to natural
resources.
(d) The authority of federal trustees includes, but is not limited
to the following actions:
(1) Requesting that the Attorney General seek compensation from the
responsible parties for the damages assessed and for the costs of an
assessment and of restoration planning; and
(2) Participating in negotiations between the United States and
potentially responsible parties to obtain PRP-financed or PRP-conducted
assessments and restorations for injured resources or protection for
threatened
[[Page 96]]
resources and to agree to covenants not to sue, where appropriate.
(3) Requiring, in consultation with the lead agency, any person to
comply with the requirements of CERCLA section 104(e) regarding
information gathering and access.
(4) Initiating damage assessments, as provided in OPA section 6002.
(e) Actions which may be taken by any trustee pursuant to section
107(f) of CERCLA, section 311(f)(5) of the CWA, or section 1006 of the
OPA include, but are not limited to, any of the following:
(1) Requesting that an authorized agency issue an administrative
order or pursue injunctive relief against the parties responsible for
the discharge or release; or
(2) Requesting that the lead agency remove, or arrange for the
removal of, or provide for remedial action with respect to, any oil or
hazardous substances from a contaminated medium pursuant to section 104
of CERCLA or section 311 of CWA.
Subpart H_Participation by Other Persons
Source: 59 FR 47452, Sept. 15, 1994, unless otherwise noted.
Sec. 300.700 Activities by other persons.
(a) General. Except as provided (e.g., in CWA section 311(c)), any
person may undertake a response action to reduce or eliminate a release
of a hazardous substance, pollutant, or contaminant.
(b) Summary of CERCLA authorities. The mechanisms available to
recover the costs of response actions under CERCLA are, in summary:
(1) Section 107(a), wherein any person may receive a court award of
his or her response costs, plus interest, from the party or parties
found to be liable;
(2) Section 111(a)(2), wherein a private party, a PRP pursuant to a
settlement agreement, or certain foreign entities may file a claim
against the Fund for reimbursement of response costs;
(3) Section 106(b), wherein any person who has complied with a
section 106(a) order may petition the Fund for reimbursement of
reasonable costs, plus interest; and
(4) Section 123, wherein a general purpose unit of local government
may apply to the Fund under 40 CFR part 310 for reimbursement of the
costs of temporary emergency measures that are necessary to prevent or
mitigate injury to human health or the environment associated with a
release.
(c) Section 107(a) cost recovery actions. (1) Responsible parties
shall be liable for all response costs incurred by the United States
government or a state or an Indian tribe not inconsistent with the NCP.
(2) Responsible parties shall be liable for necessary costs of
response actions to releases of hazardous substances incurred by any
other person consistent with the NCP.
(3) For the purpose of cost recovery under section 107(a)(4)(B) of
CERCLA:
(i) A private party response action will be considered ``consistent
with the NCP'' if the action, when evaluated as a whole, is in
substantial compliance with the applicable requirements in paragraphs
(5) and (6) of this section, and results in a CERCLA-quality cleanup;
and
(ii) Any response action carried out in compliance with the terms of
an order issued by EPA pursuant to section 106 of CERCLA, or a consent
decree entered into pursuant to section 122 of CERCLA, will be
considered ``consistent with the NCP.''
(4) Actions under Sec. 300.700(c)(1) will not be considered
``inconsistent with the NCP,'' and actions under Sec. 300.700(c)(2)
will not be considered not ``consistent with the NCP,'' based on
immaterial or insubstantial deviations from the provisions of 40 CFR
part 300.
(5) The following provisions of this part are potentially applicable
to private party response actions:
(i) Section 300.150 (on worker health and safety);
(ii) Section 300.160 (on documentation and cost recovery);
(iii) Section 300.400(c)(1), (4), (5), and (7) (on determining the
need for a Fund-financed action); (e) (on permit requirements) except
that the permit waiver does not apply to private party response actions;
and (g) (on identification of ARARs) except that applicable requirements
of federal or state law may not be waived by a private party;
[[Page 97]]
(iv) Section 300.405(b), (c), and (d) (on reports of releases to the
NRC);
(v) Section 300.410 (on removal site evaluation) except paragraphs
(f)(5) and (6);
(vi) Section 300.415 (on removal actions) except paragraphs (a)(2),
(b)(2)(vii), (b)(5), and (g); and including Sec. 300.415(j) with regard
to meeting ARARs where practicable except that private party removal
actions must always comply with the requirements of applicable law;
(vii) Section 300.420 (on remedial site evaluation);
(viii) Section 300.430 (on RI/FS and selection of remedy) except
paragraph (f)(1)(ii)(C)(6) and that applicable requirements of federal
or state law may not be waived by a private party; and
(ix) Section 300.435 (on RD/RA and operation and maintenance).
(6) Private parties undertaking response actions should provide an
opportunity for public comment concerning the selection of the response
action based on the provisions set out below, or based on substantially
equivalent state and local requirements. The following provisions of
this part regarding public participation are potentially applicable to
private party response actions, with the exception of administrative
record and information repository requirements stated therein:
(i) Section 300.155 (on public information and community relations);
(ii) Section 300.415(n) (on community relations during removal
actions);
(iii) Section 300.430(c) (on community relations during RI/FS)
except paragraph (c)(5);
(iv) Section 300.430(f)(2), (3), and (6) (on community relations
during selection of remedy); and
(v) Section 300.435(c) (on community relations during RD/RA and
operation and maintenance).
(7) When selecting the appropriate remedial action, the methods of
remedying releases listed in appendix D of this part may also be
appropriate to a private party response action.
(8) Except for actions taken pursuant to CERCLA sections 104 or 106
or response actions for which reimbursement from the Fund will be
sought, any action to be taken by the lead agency listed in paragraphs
(c)(5) through (c)(7) may be taken by the person carrying out the
response action.
(d) Section 111(a)(2) claims. (1) Persons, other than those listed
in paragraphs (d)(1)(i) through (iii) of this section, may be able to
receive reimbursement of response costs by means of a claim against the
Fund. The categories of persons excluded from pursuing this claims
authority are:
(i) Federal government;
(ii) State governments, and their political subdivisions, unless
they are potentially responsible parties covered by an order or consent
decree pursuant to section 122 of CERCLA; and
(iii) Persons operating under a procurement contract or an
assistance agreement with the United States with respect to matters
covered by that contract or assistance agreement, unless specifically
provided therein.
(2) In order to be reimbursed by the Fund, an eligible person must
notify the Administrator of EPA or designee prior to taking a response
action and receive prior approval, i.e., ``preauthorization,'' for such
action.
(3) Preauthorization is EPA's prior approval to submit a claim
against the Fund for necessary response costs incurred as a result of
carrying out the NCP. All applications for preauthorization will be
reviewed to determine whether the request should receive priority for
funding. EPA, in its discretion, may grant preauthorization of a claim.
Preauthorization will be considered only for:
(i) Removal actions pursuant to Sec. 300.415;
(ii) CERCLA section 104(b) activities; and
(iii) Remedial actions at National Priorities List sites pursuant to
Sec. 300.435.
(4) To receive EPA's prior approval, the eligible person must:
(i) Demonstrate technical and other capabilities to respond safely
and effectively to releases of hazardous substances, pollutants, or
contaminants; and
(ii) Establish that the action will be consistent with the NCP in
accordance with the elements set forth in paragraphs (c)(5) through (8)
of this section.
(5) EPA will grant preauthorization to a claim by a party it
determines to
[[Page 98]]
be potentially liable under section 107 of CERCLA only in accordance
with an order issued pursuant to section 106 of CERCLA, or a settlement
with the federal government in accordance with section 122 of CERCLA.
(6) Preauthorization does not establish an enforceable contractual
relationship between EPA and the claimant.
(7) Preauthorization represents EPA's commitment that if funds are
appropriated for response actions, the response action is conducted in
accordance with the preauthorization decision document, and costs are
reasonable and necessary, reimbursement will be made from the Superfund,
up to the maximum amount provided in the preauthorization decision
document.
(8) For a claim to be awarded under section 111 of CERCLA, EPA must
certify that the costs were necessary and consistent with the
preauthorization decision document.
(e) Section 106(b) petition. Subject to conditions specified in
CERCLA section 106(b), any person who has complied with an order issued
after October 16, 1986 pursuant to section 106(a) of CERCLA, may seek
reimbursement for response costs incurred in complying with that order
unless the person has waived that right.
(f) Section 123 reimbursement to local governments. Any general
purpose unit of local government for a political subdivision that is
affected by a release may receive reimbursement for the costs of
temporary emergency measures necessary to prevent or mitigate injury to
human health or the environment subject to the conditions set forth in
40 CFR part 310. Such reimbursement may not exceed $25,000 for a single
response.
(g) Release From Liability. Implementation of response measures by
potentially responsible parties or by any other person does not release
those parties from liability under section 107(a) of CERCLA, except as
provided in a settlement under section 122 of CERCLA or a federal court
judgment.
(h) Oil Pollution Act Claims. Claims are authorized to be presented
to the OSLTF under section 1013 of the OPA, for certain uncompensated
removal costs or uncompensated damages resulting from the discharge, or
substantial threat of discharge, of oil from a vessel or facility into
or upon the navigable waters, adjoining shorelines, or exclusive
economic zone of the United States. Anyone desiring to file a claim
against the OSLTF may obtain general information on the procedure for
filing a claim from the Director, National Pollution Funds Center, Suite
1000, 4200 Wilson Boulevard, Arlington, Virginia 22203-1804, (703) 235-
4756.
Subpart I_Administrative Record for Selection of Response Action
Source: 55 FR 8859, Mar. 8, 1990, unless otherwise noted.
Sec. 300.800 Establishment of an administrative record.
(a) General requirement. The lead agency shall establish an
administrative record that contains the documents that form the basis
for the selection of a response action. The lead agency shall compile
and maintain the administrative record in accordance with this subpart.
(b) Administrative records for federal facilities. (1) If a federal
agency other than EPA is the lead agency for a federal facility, the
federal agency shall compile and maintain the administrative record for
the selection of the response action for that facility in accordance
with this subpart. EPA may furnish documents which the federal agency
shall place in the administrative record file to ensure that the
administrative record includes all documents that form the basis for the
selection of the response action.
(2) EPA or the U.S. Coast Guard shall compile and maintain the
administrative record when it is the lead agency for a federal facility.
(3) If EPA is involved in the selection of the response action at a
federal facility on the NPL, the federal agency acting as the lead
agency shall provide EPA with a copy of the index of documents included
in the administrative record file, the RI/FS workplan, the RI/FS
released for public comment, the proposed plan, any public comments
received on the RI/FS and proposed plan, and any other documents EPA may
request on a case-by-case basis.
[[Page 99]]
(c) Administrative record for state-lead sites. If a state is the
lead agency for a site, the state shall compile and maintain the
administrative record for the selection of the response action for that
site in accordance with this subpart. EPA may require the state to place
additional documents in the administrative record file to ensure that
the administrative record includes all documents which form the basis
for the selection of the response action. The state shall provide EPA
with a copy of the index of documents included in the administrative
record file, the RI/FS workplan, the RI/FS released for public comment,
the proposed plan, any public comments received on the RI/FS and
proposed plan, and any other documents EPA may request on a case-by-case
basis.
(d) Applicability. This subpart applies to all response actions
taken under section 104 of CERCLA or sought, secured, or ordered
administratively or judicially under section 106 of CERCLA, as follows:
(1) Remedial actions where the remedial investigation commenced
after the promulgation of these regulations; and
(2) Removal actions where the action memorandum is signed after the
promulgation of these regulations.
(e) For those response actions not included in paragraph (d) of this
section, the lead agency shall comply with this subpart to the extent
practicable.
Sec. 300.805 Location of the administrative record file.
(a) The lead agency shall establish a docket at an office of the
lead agency or other central location at which documents included in the
administrative record file shall be located and a copy of the documents
included in the administrative record file shall also be made available
for public inspection at or near the site at issue, except as provided
below:
(1) Sampling and testing data, quality control and quality assurance
documentation, and chain of custody forms, need not be located at or
near the site at issue or at the central location, provided that the
index to the administrative record file indicates the location and
availability of this information.
(2) Guidance documents not generated specifically for the site at
issue need not be located at or near the site at issue, provided that
they are maintained at the central location and the index to the
administrative record file indicates the location and availability of
these guidance documents.
(3) Publicly available technical literature not generated for the
site at issue, such as engineering textbooks, articles from technical
journals, and toxicological profiles, need not be located at or near the
site at issue or at the central location, provided that the literature
is listed in the index to the administrative record file or the
literature is cited in a document in the record.
(4) Documents included in the confidential portion of the
administrative record file shall be located only in the central
location.
(5) The administrative record for a removal action where the release
or threat of release requires that on-site removal activities be
initiated within hours of the lead agency's determination that a removal
is appropriate and on-site removal activities cease within 30 days of
initiation, need be available for public inspection only at the central
location.
(b) Where documents are placed in the central location but not in
the file located at or near the site, such documents shall be added to
the file located at or near the site upon request, except for documents
included in paragraph (a)(4) of this section.
(c) The lead agency may make the administrative record file
available to the public in microform, computer telecommunications, or
other electronic means.
[55 FR 8859, Mar. 8, 1990, as amended at 78 FR 16614, Mar. 18, 2013]
Sec. 300.810 Contents of the administrative record file.
(a) Contents. The administrative record file for selection of a
response action typically, but not in all cases, will contain the
following types of documents:
(1) Documents containing factual information, data and analysis of
the factual information, and data that may
[[Page 100]]
form a basis for the selection of a response action. Such documents may
include verified sampling data, quality control and quality assurance
documentation, chain of custody forms, site inspection reports,
preliminary assessment and site evaluation reports, ATSDR health
assessments, documents supporting the lead agency's determination of
imminent and substantial endangerment, public health evaluations, and
technical and engineering evaluations. In addition, for remedial
actions, such documents may include approved workplans for the remedial
investigation/feasibility study, state documentation of applicable or
relevant and appropriate requirements, and the RI/FS;
(2) Guidance documents, technical literature, and site-specific
policy memoranda that may form a basis for the selection of the response
action. Such documents may include guidance on conducting remedial
investigations and feasibility studies, guidance on determining
applicable or relevant and appropriate requirements, guidance on risk/
exposure assessments, engineering handbooks, articles from technical
journals, memoranda on the application of a specific regulation to a
site, and memoranda on off-site disposal capacity;
(3) Documents received, published, or made available to the public
under Sec. 300.815 for remedial actions, or Sec. 300.820 for removal
actions. Such documents may include notice of availability of the
administrative record file, community relations plan, proposed plan for
remedial action, notices of public comment periods, public comments and
information received by the lead agency, and responses to significant
comments;
(4) Decision documents. Such documents may include action memoranda
and records of decision;
(5) Enforcement orders. Such documents may include administrative
orders and consent decrees; and
(6) An index of the documents included in the administrative record
file. If documents are customarily grouped together, as with sampling
data chain of custody documents, they may be listed as a group in the
index to the administrative record file.
(b) Documents not included in the administrative record file. The
lead agency is not required to include documents in the administrative
record file which do not form a basis for the selection of the response
action. Such documents include but are not limited to draft documents,
internal memoranda, and day-to-day notes of staff unless such documents
contain information that forms the basis of selection of the response
action and the information is not included in any other document in the
administrative record file.
(c) Privileged documents. Privileged documents shall not be included
in the record file except as provided in paragraph (d) of this section
or where such privilege is waived. Privileged documents include but are
not limited to documents subject to the attorney-client, attorney work
product, deliberative process, or other applicable privilege.
(d) Confidential file. If information which forms the basis for the
selection of a response action is included only in a document containing
confidential or privileged information and is not otherwise available to
the public, the information, to the extent feasible, shall be summarized
in such a way as to make it disclosable and the summary shall be placed
in the publicly available portion of the administrative record file. The
confidential or privileged document itself shall be placed in the
confidential portion of the administrative record file. If information,
such as confidential business information, cannot be summarized in a
disclosable manner, the information shall be placed only in the
confidential portion of the administrative record file. All documents
contained in the confidential portion of the administrative record file
shall be listed in the index to the file.
Sec. 300.815 Administrative record file for a remedial action.
(a) The administrative record file for the selection of a remedial
action shall be made available for public inspection at the commencement
of the remedial investigation phase. At such time, the lead agency shall
publish in a major local newspaper of general circulation a notice or
use one or more other
[[Page 101]]
mechanisms to give adequate notice to a community of the availability of
the administrative record file.
(b) The lead agency shall provide a public comment period as
specified in Sec. 300.430(f)(3) so that interested persons may submit
comments on the selection of the remedial action for inclusion in the
administrative record file. The lead agency is encouraged to consider
and respond as appropriate to significant comments that were submitted
prior to the public comment period. A written response to significant
comments submitted during the public comment period shall be included in
the administrative record file.
(c) The lead agency shall comply with the public participation
procedures required in Sec. 300.430(f)(3) and shall document such
compliance in the administrative record.
(d) Documents generated or received after the record of decision is
signed shall be added to the administrative record file only as provided
in Sec. 300.825.
[55 FR 8859, Mar. 8, 1990, as amended at 80 FR 17706, Apr. 2, 2015]
Sec. 300.820 Administrative record file for a removal action.
(a) If, based on the site evaluation, the lead agency determines
that a removal action is appropriate and that a planning period of at
least six months exists before on-site removal activities must be
initiated:
(1) The administrative record file shall be made available for
public inspection when the engineering evaluation/cost analysis (EE/CA)
is made available for public comment. At such time, the lead agency
shall publish in a major local newspaper of general circulation a notice
or use one or more other mechanisms to give adequate notice to a
community of the availability of the administrative record file.
(2) The lead agency shall provide a public comment period as
specified in Sec. 300.415 so that interested persons may submit
comments on the selection of the removal action for inclusion in the
administrative record file. The lead agency is encouraged to consider
and respond, as appropriate, to significant comments that were submitted
prior to the public comment period. A written response to significant
comments submitted during the public comment period shall be included in
the administrative record file.
(3) The lead agency shall comply with the public participation
procedures of Sec. 300.415(m) and shall document compliance with Sec.
300.415(m)(3)(i) through (iii) in the administrative record file.
(4) Documents generated or received after the decision document is
signed shall be added to the administrative record file only as provided
in Sec. 300.825.
(b) For all removal actions not included in paragraph (a) of this
section:
(1) Documents included in the administrative record file shall be
made available for public inspection no later than 60 days after
initiation of on-site removal activity. At such time, the lead agency
shall publish in a major local newspaper of general circulation a notice
or use one or more other mechanisms to give adequate notice to a
community of the availability of the administrative record file.
(2) The lead agency shall, as appropriate, provide a public comment
period of not less than 30 days beginning at the time the administrative
record file is made available to the public. The lead agency is
encouraged to consider and respond, as appropriate, to significant
comments that were submitted prior to the public comment period. A
written response to significant comments submitted during the public
comment period shall be included in the administrative record file.
(3) Documents generated or received after the decision document is
signed shall be added to the administrative record file only as provided
in Sec. 300.825.
[55 FR 8859, Mar. 8, 1990, as amended at 80 FR 17706, Apr. 2, 2015]
Sec. 300.825 Record requirements after the decision document is signed.
(a) The lead agency may add documents to the administrative record
file after the decision document selecting the response action has been
signed if:
(1) The documents concern a portion of a response action decision
that the decision document does not address or reserves to be decided at
a later date; or
(2) An explanation of significant differences required by Sec.
300.435(c), or an amended decision document is issued,
[[Page 102]]
in which case, the explanation of significant differences or amended
decision document and all documents that form the basis for the decision
to modify the response action shall be added to the administrative
record file.
(b) The lead agency may hold additional public comment periods or
extend the time for the submission of public comment after a decision
document has been signed on any issues concerning selection of the
response action. Such comment shall be limited to the issues for which
the lead agency has requested additional comment. All additional
comments submitted during such comment periods that are responsive to
the request, and any response to these comments, along with documents
supporting the request and any final decision with respect to the issue,
shall be placed in the administrative record file.
(c) The lead agency is required to consider comments submitted by
interested persons after the close of the public comment period only to
the extent that the comments contain significant information not
contained elsewhere in the administrative record file which could not
have been submitted during the public comment period and which
substantially support the need to significantly alter the response
action. All such comments and any responses thereto shall be placed in
the administrative record file.
Subpart J_Use of Dispersants and Other Chemicals
Source: 59 FR 47453, Sept. 15, 1994, unless otherwise noted.
Sec. 300.900 General.
(a) Section 311(d)(2)(G) of the CWA requires that EPA prepare a
schedule of dispersants, other chemicals, and other spill mitigating
devices and substances, if any, that may be used in carrying out the
NCP. This subpart makes provisions for such a schedule.
(b) This subpart applies to the navigable waters of the United
States and adjoining shorelines, the waters of the contiguous zone, and
the high seas beyond the contiguous zone in connection with activities
under the Outer Continental Shelf Lands Act, activities under the
Deepwater Port Act of 1974, or activities that may affect natural
resources belonging to, appertaining to, or under the exclusive
management authority of the United States, including resources under the
Magnuson Fishery Conservation and Management Act of 1976.
(c) This subpart applies to the use of any chemical agents or other
additives as defined in subpart A of this part that may be used to
remove or control oil discharges.
Sec. 300.905 NCP Product Schedule.
(a) Oil Discharges. (1) EPA shall maintain a schedule of dispersants
and other chemical or bioremediation products that may be authorized for
use on oil discharges in accordance with the procedures set forth in
Sec. 300.910. This schedule, called the NCP Product Schedule, may be
obtained from the Emergency Response Division (5202-G), U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460. The telephone number is 703-603-8760.
(2) Products may be added to the NCP Product Schedule by the process
specified in Sec. 300.920.
(b) Hazardous Substance Releases. [Reserved]
[59 FR 47453, Sept. 15, 1994, as amended at 65 FR 47325, Aug. 2, 2000]
Sec. 300.910 Authorization of use.
(a) RRTs and Area Committees shall address, as part of their
planning activities, the desirability of using appropriate dispersants,
surface washing agents, surface collecting agents, bioremediation
agents, or miscellaneous oil spill control agents listed on the NCP
Product Schedule, and the desirability of using appropriate burning
agents. RCPs and ACPs shall, as appropriate, include applicable
preauthorization plans and address the specific contexts in which such
products should and should not be used. In meeting the provisions of
this paragraph, preauthorization plans may address factors such as the
potential sources and types of oil that might be spilled, the existence
and location of environmentally sensitive resources that might be
impacted by spilled oil,
[[Page 103]]
available product and storage locations, available equipment and
adequately trained operators, and the available means to monitor product
application and effectiveness. The RRT representatives from EPA and the
states with jurisdiction over the waters of the area to which a
preauthorization plan applies and the DOC and DOI natural resource
trustees shall review and either approve, disapprove, or approve with
modification the preauthorization plans developed by Area Committees, as
appropriate. Approved preauthorization plans shall be included in the
appropriate RCPs and ACPs. If the RRT representatives from EPA and the
states with jurisdiction over the waters of the area to which a
preauthorization plan applies and the DOC and DOI natural resource
trustees approve in advance the use of certain products under specified
circumstances as described in the preauthorization plan, the OSC may
authorize the use of the products without obtaining the specific
concurrences described in paragraphs (b) and (c) of this section.
(b) For spill situations that are not addressed by the
preauthorization plans developed pursuant to paragraph (a) of this
section, the OSC, with the concurrence of the EPA representative to the
RRT and, as appropriate, the concurrence of the RRT representatives from
the states with jurisdiction over the navigable waters threatened by the
release or discharge, and in consultation with the DOC and DOI natural
resource trustees, when practicable, may authorize the use of
dispersants, surface washing agents, surface collecting agents,
bioremediation agents, or miscellaneous oil spill control agents on the
oil discharge, provided that the products are listed on the NCP Product
Schedule.
(c) The OSC, with the concurrence of the EPA representative to the
RRT and, as appropriate, the concurrence of the RRT representatives from
the states with jurisdiction over the navigable waters threatened by the
release or discharge, and in consultation with the DOC and DOI natural
resource trustees, when practicable, may authorize the use of burning
agents on a case-by-case basis.
(d) The OSC may authorize the use of any dispersant, surface washing
agent, surface collecting agent, other chemical agent, burning agent,
bioremediation agent, or miscellaneous oil spill control agent,
including products not listed on the NCP Product Schedule, without
obtaining the concurrence of the EPA representative to the RRT and, as
appropriate, the RRT representatives from the states with jurisdiction
over the navigable waters threatened by the release or discharge, when,
in the judgment of the OSC, the use of the product is necessary to
prevent or substantially reduce a hazard to human life. Whenever the OSC
authorizes the use of a product pursuant to this paragraph, the OSC is
to inform the EPA RRT representative and, as appropriate, the RRT
representatives from the affected states and, when practicable, the DOC/
DOI natural resources trustees of the use of a product, including
products not on the Schedule, as soon as possible. Once the threat to
human life has subsided, the continued use of a product shall be in
accordance with paragraphs (a), (b), and (c) of this section.
(e) Sinking agents shall not be authorized for application to oil
discharges.
(f) When developing preauthorization plans, RRTs may require the
performance of supplementary toxicity and effectiveness testing of
products, in addition to the test methods specified in Sec. 300.915 and
described in appendix C to part 300, due to existing site-specific or
area-specific concerns.
Sec. 300.915 Data requirements.
(a) Dispersants. (1) Name, brand, or trademark, if any, under which
the dispersant is sold.
(2) Name, address, and telephone number of the manufacturer,
importer, or vendor.
(3) Name, address, and telephone number of primary distributors or
sales outlets.
(4) Special handling and worker precautions for storage and field
application. Maximum and minimum storage temperatures, to include
optimum ranges as well as temperatures that will cause phase
separations, chemical
[[Page 104]]
changes, or other alterations to the effectiveness of the product.
(5) Shelf life.
(6) Recommended application procedures, concentrations, and
conditions for use depending upon water salinity, water temperature,
types and ages of the pollutants, and any other application
restrictions.
(7) Effectiveness. Use the Swirling Flask effectiveness test methods
described in appendix C to part 300. Manufacturers shall submit test
results and supporting data, along with a certification signed by
responsible corporate officials of the manufacturer and laboratory
stating that the test was conducted on a representative product sample,
the testing was conducted using generally accepted laboratory practices,
and they believe the results to be accurate. A dispersant must attain an
effectiveness value of 45 percent or greater to be added to the NCP
Product Schedule. Manufacturers are encouraged to provide data on
product performance under conditions other than those captured by these
tests.
(8) Dispersant Toxicity. For those dispersants that meet the
effectiveness threshold described in paragraph (a)(7) above, use the
standard toxicity test methods described in appendix C to part 300.
Manufacturers shall submit test results and supporting data, along with
a certification signed by responsible corporate officials of the
manufacturer and laboratory stating that the test was conducted on a
representative product sample, the testing was conducted using generally
accepted laboratory practices, and they believe the results to be
accurate.
(9) The following data requirements incorporate by reference
standards from the 1991 or 1992 Annual Books of ASTM Standards. American
Society for Testing and Materials, 1916 Race Street, Philadelphia,
Pennsylvania 19103. This incorporation by reference was approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. \1\
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\1\ Copies of these standards may be obtained from the publisher.
Copies may be inspected at the U.S. Environmental Protection Agency
Superfund Docket, located at 1235 Jefferson Davis Highway, First Floor,
Arlington, VA 22202 or send mail to Mail Code 5305G, 1200 Pennsylvania
Ave., NW., Washington, DC, or at the Office of the Federal Register,
1100 L Street, NW., Room 8401, Washington, DC 20408.
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(i) Flash Point--Select appropriate method from the following:
(A) ASTM--D 56-87, ``Standard Test Method for Flash Point by Tag
Closed Tester;''
(B) ASTM--D 92-90, ``Standard Test Method for Flash and Fire Points
by Cleveland Open Cup;''
(C) ASTM--D 93-90, ``Standard Test Methods for Flash Point by
Pensky-Martens Closed Tester;''
(D) ASTM--D 1310-86, ``Standard Test Method for Flash Point and Fire
Point of Liquids by Tag Open-Cup Apparatus;'' or
(E) ASTM--D 3278-89, ``Standard Test Methods for Flash Point of
Liquids by Setaflash Closed-Cup Apparatus.''
(ii) Pour Point--Use ASTM--D 97-87, ``Standard Test Method for Pour
Point of Petroleum Oils.''
(iii) Viscosity--Use ASTM--D 445-88, ``Standard Test Method for
Kinematic Viscosity of Transparent and Opaque Liquids (and the
Calculation of Dynamic Viscosity).''
(iv) Specific Gravity--Use ASTM--D 1298-85(90), ``Standard Test
Method for Density, Relative Density (Specific Gravity), or API Gravity
of Crude Petroleum and Liquid Petroleum Products by Hydrometer Method.''
(v) pH--Use ASTM--D 1293-84(90), ``Standard Test Methods for pH of
Water.''
(10) Dispersing Agent Components. Itemize by chemical name and
percentage by weight each component of the total formulation. The
percentages will include maximum, minimum, and average weights in order
to reflect quality control variations in manufacture or formulation. In
addition to the chemical information provided in response to the first
two sentences, identify the major components in at least the following
categories: surface active agents, solvents, and additives.
(11) Heavy Metals, Cyanide, and Chlorinated Hydrocarbons. Using
standard test procedures, state the concentrations or upper limits of
the following materials:
(i) Arsenic, cadmium, chromium, copper, lead, mercury, nickel, zinc,
[[Page 105]]
plus any other metals that may be reasonably expected to be in the
sample. Atomic absorption methods should be used and the detailed
analytical methods and sample preparation shall be fully described.
(ii) Cyanide. Standard calorimetric procedures should be used.
(iii) Chlorinated hydrocarbons. Gas chromatography should be used
and the detailed analytical methods and sample preparation shall be
fully described. At a minimum, the following test methods shall be used
for chlorinated hydrocarbon analyses: EPA Method 601--Purgeable
halocarbons (Standard Method 6230 B) and EPA Method 608--Organochlorine
pesticides and PCBs (Standard Method 6630 C). \2\
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\2\ These test methods may be obtained from: Standard Methods for
the Examination of Water and Wastewater, 17th Edition, American Public
Health Association, 1989; or Method 601--Purgeable halocarbons, 40 CFR
part 136 and Method 608--Organochlorine pesticide and PCBs, 40 CFR part
136. Copies may be inspected at the U.S. Environmental Protection Agency
Superfund Docket, located at 1235 Jefferson Davis Highway, First Floor,
Arlington, VA 22202 or send mail to Mail Code 5305G, 1200 Pennsylvania
Ave., NW., Washington, DC, or at the Office of the Federal Register,
1100 L Street, NW., Room 8401, Washington, DC 20408.
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(12) The technical product data submission shall include the
identity of the laboratory that performed the required tests, the
qualifications of the laboratory staff, including professional
biographical information for individuals responsible for any tests, and
laboratory experience with similar tests. Laboratories performing
toxicity tests for dispersant toxicity must demonstrate previous
toxicity test experience in order for their results to be accepted. It
is the responsibility of the submitter to select competent analytical
laboratories based on the guidelines contained herein. EPA reserves the
right to refuse to accept a submission of technical product data because
of lack of qualification of the analytical laboratory, significant
variance between submitted data and any laboratory confirmation
performed by EPA, or other circumstances that would result in inadequate
or inaccurate information on the dispersing agent.
(b) Surface washing agents. (1) Name, brand, or trademark, if any,
under which the surface washing agent is sold.
(2) Name, address, and telephone number of the manufacturer,
importer, or vendor.
(3) Name, address, and telephone number of primary distributors or
sales outlets.
(4) Special handling and worker precautions for storage and field
application. Maximum and minimum storage temperatures, to include
optimum ranges as well as temperatures that will cause phase
separations, chemical changes, or other alterations to the effectiveness
of the product.
(5) Shelf life.
(6) Recommended application procedures, concentrations, and
conditions for use depending upon water salinity, water temperature,
types and ages of the pollutants, and any other application
restrictions.
(7) Toxicity. Use standard toxicity test methods described in
appendix C to part 300.
(8) Follow the data requirement specifications in paragraph (a)(9)
of this section.
(9) Surface Washing Agent Components. Itemize by chemical name and
percentage by weight each component of the total formulation. The
percentages will include maximum, minimum, and average weights in order
to reflect quality control variations in manufacture or formulation. In
addition to the chemical information provided in response to the first
two sentences, identify the major components in at least the following
categories: surface active agents, solvents, and additives.
(10) Heavy Metals, Cyanide, and Chlorinated Hydrocarbons. Follow
specifications in paragraph (a)(11) of this section.
(11) Analytical Laboratory Requirements for Technical Product Data.
Follow specifications in paragraph (a)(12) of this section.
(c) Surface collecting agents. (1) Name, brand, or trademark, if
any, under which the product is sold.
(2) Name, address, and telephone number of the manufacturer,
importer, or vendor.
[[Page 106]]
(3) Name, address, and telephone number of primary distributors or
sales outlets.
(4) Special handling and worker precautions for storage and field
application. Maximum and minimum storage temperatures, to include
optimum ranges as well as temperatures that will cause phase
separations, chemical changes, or other alterations to the effectiveness
of the product.
(5) Shelf life.
(6) Recommended application procedures, concentrations, and
conditions for use depending upon water salinity, water temperature,
types and ages of the pollutants, and any other application
restrictions.
(7) Toxicity. Use standard toxicity test methods described in
appendix C to part 300.
(8) Follow the data requirement specifications in paragraph (a)(9)
of this section.
(9) Test to Distinguish Between Surface Collecting Agents and Other
Chemical Agents.
(i) Method Summary--Five milliliters of the chemical under test are
mixed with 95 milliliters of distilled water and allowed to stand
undisturbed for one hour. Then the volume of the upper phase is
determined to the nearest one milliliter.
(ii) Apparatus.
(A) Mixing Cylinder: 100 milliliter subdivisions and fitted with a
glass stopper.
(B) Pipettes: Volumetric pipette, 5.0 milliliter.
(C) Timers.
(iii) Procedure--Add 95 milliliters of distilled water at 22 [deg]C,
plus or minus 3 [deg]C, to a 100 milliliter mixing cylinder. To the
surface of the water in the mixing cylinder, add 5.0 milliliters of the
chemical under test. Insert the stopper and invert the cylinder five
times in ten seconds. Set upright for one hour at 22 [deg]C, plus or
minus 3 [deg]C, and then measure the chemical layer at the surface of
the water. If the major portion of the chemical added (75 percent) is at
the water surface as a separate and easily distinguished layer, the
product is a surface collecting agent.
(10) Surface Collecting Agent Components. Itemize by chemical name
and percentage by weight each component of the total formulation. The
percentages should include maximum, minimum, and average weights in
order to reflect quality control variations in manufacture or
formulation. In addition to the chemical information provided in
response to the first two sentences, identify the major components in at
least the following categories: surface action agents, solvents, and
additives.
(11) Heavy Metals, Cyanide, and Chlorinated Hydrocarbons. Follow
specifications in paragraph (a)(11) of this section.
(12) Analytical Laboratory Requirements for Technical Product Data.
Follow specifications in paragraph (a)(12) of this section.
(d) Bioremediation Agents. (1) Name, brand, or trademark, if any,
under which the agent is sold.
(2) Name, address, and telephone number of the manufacturer,
importer, or vendor.
(3) Name, address, and telephone number of primary distributors or
sales outlets.
(4) Special handling and worker precautions for storage and field
application. Maximum and minimum storage temperatures.
(5) Shelf life.
(6) Recommended application procedures, concentrations, and
conditions for use depending upon water salinity, water temperature,
types and ages of the pollutants, and any other application
restrictions.
(7) Bioremediation Agent Effectiveness. Use bioremediation agent
effectiveness test methods described in appendix C to part 300.
(8) Bioremediation Agent Toxicity [Reserved].
(9) Biological additives.
(i) For microbiological cultures, furnish the following information:
(A) Listing of each component of the total formulation, other than
microorganisms, by chemical name and percentage by weight.
(B) Listing of all microorganisms by species.
(C) Percentage of each species in the composition of the additive.
(D) Optimum pH, temperature, and salinity ranges for use of the
additive,
[[Page 107]]
and maximum and minimum pH, temperature, and salinity levels above or
below which the effectiveness of the additive is reduced to half its
optimum capacity.
(E) Special nutrient requirements, if any.
(F) Separate listing of the following, and test methods for such
determinations: Salmonella, fecal coliform, Shigella, Staphylococcus
Coagulase positive, and Beta Hemolytic Streptococci.
(ii) For enzyme additives, furnish the following information:
(A) Listing of each component of the total formulation, other than
enzymes, by chemical name and percentage by weight.
(B) Enzyme name(s).
(C) International Union of Biochemistry (I.U.B.) number(s).
(D) Source of the enzyme.
(E) Units.
(F) Specific Activity.
(G) Optimum pH, temperature, and salinity ranges for use of the
additive, and maximum and minimum pH, temperature, and salinity levels
above or below which the effectiveness of the additive is reduced to
half its optimum capacity.
(H) Enzyme shelf life.
(I) Enzyme optimum storage conditions.
(10) For nutrient additives, furnish the following information:
(i) Listing of each component of the total formulation by chemical
name and percentage by weight.
(ii) Nutrient additive optimum storage conditions.
(11) Analytical Laboratory Requirements for Technical Product Data.
Follow specifications in paragraph (a)(12) of this section.
(e) Burning Agents. EPA does not require technical product data
submissions for burning agents and does not include burning agents on
the NCP Product Schedule.
(f) Miscellaneous Oil Spill Control Agents. (1) Name, brand, or
trademark, if any, under which the miscellaneous oil spill control agent
is sold.
(2) Name, address, and telephone number of the manufacturer,
importer, or vendor.
(3) Name, address, and telephone number of primary distributors or
sales outlets.
(4) Brief description of recommended uses of the product and how the
product works.
(5) Special handling and worker precautions for storage and field
application. Maximum and minimum storage temperatures, to include
optimum ranges as well as temperatures that will cause phase
separations, chemical changes, or other alternatives to the
effectiveness of the product.
(6) Shelf life.
(7) Recommended application procedures, concentrations, and
conditions for use depending upon water salinity, water temperature,
types and ages of the pollutants, and any other application
restrictions.
(8) Toxicity. Use standard toxicity test methods described in
appendix C to part 300.
(9) Follow the data requirement specifications in paragraph (a)(9)
of this section.
(10) Miscellaneous Oil Spill Control Agent Components. Itemize by
chemical name and percentage by weight each component of the total
formulation. The percentages should include maximum, minimum, and
average weights in order to reflect quality control variations in
manufacture or formulation. In addition to the chemical information
provided in response to the first two sentences, identify the major
components in at least the following categories: surface active agents,
solvents, and additives.
(11) Heavy Metals, Cyanide, and Chlorinated Hydrocarbons. Follow
specifications in paragraph (a)(11) of this section.
(12) For any miscellaneous oil spill control agent that contains
microbiological cultures, enzyme additives, or nutrient additives,
furnish the information specified in paragraphs (d)(9) and (d)(10) of
this section, as appropriate.
(13) Analytical Laboratory Requirements for Technical Product Data.
Follow specifications in paragraph (a)(12) of this section.
(g) Sorbents. (1) Sorbent material may consist of, but is not
limited to, the following materials:
[[Page 108]]
(i) Organic products--
(A) Peat moss or straw;
(B) Cellulose fibers or cork;
(C) Corn cobs;
(D) Chicken, duck, or other bird feathers.
(ii) Mineral compounds--
(A) Volcanic ash or perlite;
(B) Vermiculite or zeolite.
(iii) Synthetic products--
(A) Polypropylene;
(B) Polyethylene;
(C) Polyurethane;
(D) Polyester.
(2) EPA does not require technical product data submissions for
sorbents and does not include sorbents on the NCP Product Schedule.
(3) Manufacturers that produce sorbent materials that consist of
materials other than those listed in paragraph (g)(1) of this section
shall submit to EPA the technical product data specified for
miscellaneous oil spill control agents in paragraph (f) of this section
and EPA will consider listing those products on the NCP Product Schedule
under the miscellaneous oil spill control agent category. EPA will
inform the submitter in writing, within 60 days of the receipt of
technical product data, of its decision on adding the product to the
Schedule.
(4) Certification. OSCs may request a written certification from
manufacturers that produce sorbent materials that consist solely of the
materials listed in paragraph (g)(1) of this section prior to making a
decision on the use of a particular sorbent material. The certification
at a minimum shall state that the sorbent consists solely of the
materials listed in Sec. 300.915(g)(1) of the NCP. The following
statement, when completed, dated, and signed by a sorbent manufacturer,
is sufficient to meet the written certification requirement:
[SORBENT NAME] is a sorbent material and consists solely of the
materials listed in Sec. 300.915(g)(1) of the NCP.
(h) Mixed products. Manufacturers of products that consist of
materials that meet the definitions of two or more of the product
categories contained on the NCP Product Schedule shall submit to EPA the
technical product data specified in this section for each of those
product categories. After review of the submitted technical product
data, and the performance of required dispersant effectiveness and
toxicity tests, if appropriate, EPA will make a determination on whether
and under which category the mixed product should be listed on the
Schedule.
[59 FR 47453, Sept. 15, 1994, as amended at 65 FR 47325, Aug. 2, 2000]
Sec. 300.920 Addition of products to Schedule.
(a) Dispersants. (1) To add a dispersant to the NCP Product
Schedule, submit the technical product data specified in Sec.
300.915(a) to the Emergency Response Division (5202-G), U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460. A dispersant must attain an effectiveness value of
45 percent or greater in order to be added to the Schedule.
(2) EPA reserves the right to request further documentation of the
manufacturers' test results. EPA also reserves the right to verify test
results and consider the results of EPA's verification testing in
determining whether the dispersant meets listing criteria. EPA will,
within 60 days of receiving a complete application as specified in Sec.
300.915(a) of this part, notify the manufacturer of its decision to list
the product on the Schedule, or request additional information and/or a
sample of the product in order to review and/or conduct validation
sampling. If EPA requests additional information and/or a product
sample, within 60 days of receiving such additional information or
sample, EPA will then notify the manufacturer in writing of its decision
to list or not list the product.
(3) Request for review of decision. (i) A manufacturer whose product
was determined to be ineligible for listing on the NCP Product Schedule
may request EPA's Administrator to review the determination. The request
must be made in writing within 30 days of receiving notification of
EPA's decision to not list the dispersant on the Schedule. The request
shall contain a clear and concise statement with supporting facts and
technical analysis demonstrating that EPA's decision was incorrect.
(ii) The Administrator or his designee may request additional
information from the manufacturer, or from
[[Page 109]]
any other person, and may provide for a conference between EPA and the
manufacturer, if appropriate. The Administrator or his designee shall
render a decision within 60 days of receiving the request, or within 60
days of receiving requested additional information, if appropriate, and
shall notify the manufacturer of his decision in writing.
(b) Surface washing agents, surface collecting agents,
bioremediation agents, and miscellaneous oil spill control agents. (1)
To add a surface washing agent, surface collecting agent, bioremediation
agent, or miscellaneous oil spill control agent to the NCP Product
Schedule, the technical product data specified in Sec. 300.915 must be
submitted to the Emergency Response Division (5202-G), U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460. If EPA determines that the required data were
submitted, EPA will add the product to the Schedule.
(2) EPA will inform the submitter in writing, within 60 days of the
receipt of technical product data, of its decision on adding the product
to the Schedule.
(c) The submitter may assert that certain information in the
technical product data submissions, including technical product data
submissions for sorbents pursuant to Sec. 300.915(g)(3), is
confidential business information. EPA will handle such claims pursuant
to the provisions in 40 CFR part 2, subpart B. Such information must be
submitted separately from non-confidential information, clearly
identified, and clearly marked ``Confidential Business Information.'' If
the submitter fails to make such a claim at the time of submittal, EPA
may make the information available to the public without further notice.
(d) The submitter must notify EPA of any changes in the composition,
formulation, or application of the dispersant, surface washing agent,
surface collecting agent, bioremediation agent, or miscellaneous oil
spill control agent. On the basis of this data, EPA may require
retesting of the product if the change is likely to affect the
effectiveness or toxicity of the product.
(e) The listing of a product on the NCP Product Schedule does not
constitute approval of the product. To avoid possible misinterpretation
or misrepresentation, any label, advertisement, or technical literature
that refers to the placement of the product on the NCP Product Schedule
must either reproduce in its entirety EPA's written statement that it
will add the product to the NCP Product Schedule under Sec.
300.920(a)(2) or (b)(2), or include the disclaimer shown below. If the
disclaimer is used, it must be conspicuous and must be fully reproduced.
Failure to comply with these restrictions or any other improper attempt
to demonstrate the approval of the product by any NRT or other U.S.
Government agency shall constitute grounds for removing the product from
the NCP Product Schedule.
DISCLAIMER
[PRODUCT NAME] is on the U.S. Environmental Protection Agency's NCP
Product Schedule. This listing does NOT mean that EPA approves,
recommends, licenses, certifies, or authorizes the use of [PRODUCT NAME]
on an oil discharge. This listing means only that data have been
submitted to EPA as required by subpart J of the National Contingency
Plan, Sec. 300.915.
Subpart K--Federal Facilities [Reserved]
Subpart L_National Oil and Hazardous Substances Pollution Contingency
Plan; Involuntary Acquisition of Property by the Government
Source: 62 FR 34602, June 26, 1997, unless otherwise noted.
Sec. 300.1105 Involuntary acquisition of property by the government.
(a) Governmental ownership or control of property by involuntary
acquisitions or involuntary transfers within the meaning of CERCLA
section 101(20)(D) or section 101(35)(A)(ii) includes, but is not
limited to:
(1) Acquisitions by or transfers to the government in its capacity
as a sovereign, including transfers or acquisitions pursuant to
abandonment proceedings, or as the result of tax delinquency, or
escheat, or other circumstances in which the government
[[Page 110]]
involuntarily obtains ownership or control of property by virtue of its
function as sovereign;
(2) Acquisitions by or transfers to a government entity or its agent
(including governmental lending and credit institutions, loan
guarantors, loan insurers, and financial regulatory entities which
acquire security interests or properties of failed private lending or
depository institutions) acting as a conservator or receiver pursuant to
a clear and direct statutory mandate or regulatory authority;
(3) Acquisitions or transfers of assets through foreclosure and its
equivalents (as defined in 40 CFR 300.1100(d)(1)) or other means by a
Federal, state, or local government entity in the course of
administering a governmental loan or loan guarantee or loan insurance
program; and
(4) Acquisitions by or transfers to a government entity pursuant to
seizure or forfeiture authority.
(b) Nothing in this section or in CERCLA section 101(20)(D) or
section 101(35)(A)(ii) affects the applicability of 40 CFR 300.1100 to
any security interest, property, or asset acquired pursuant to an
involuntary acquisition or transfer, as described in this section.
Note to paragraphs (a)(3) and (b of this section: Reference to 40
CFR 300.1100 is a reference to the provisions regarding secured
creditors in CERCLA sections 101(20)(E)-(G), 42 U.S.C. 9601(20)(E)-(G).
See Section 2504(a) of the Asset Conservation, Lender Liability, and
Deposit Insurance Protection Act, Public Law, 104-208, 110 Stat. 3009-
462, 3009-468 (1996).
Sec. Appendix A to Part 300--The Hazard Ranking System
Table of Contents
List of Figures
List of Tables
1.0. Introduction.
1.1 Definitions.
2.0 Evaluations Common to Multiple Pathways.
2.1 Overview.
2.1.1 Calculation of HRS site score.
2.1.2 Calculation of pathway score.
2.1.3 Common evaluations.
2.2 Characterize sources.
2.2.1 Identify sources.
2.2.2 Identify hazardous substances associated with a source.
2.2.3 Identify hazardous substances available to a pathway.
2.3 Likelihood of release.
2.4 Waste characteristics.
2.4.1 Selection of substance potentially posing greatest hazard.
2.4.1.1 Toxicity factor.
2.4.1.2 Hazardous substance selection.
2.4.2 Hazardous waste quantity.
2.4.2.1 Source hazardous waste quantity.
2.4.2.1.1 Hazardous constituent quantity.
2.4.2.1.2 Hazardous wastestream quantity.
2.4.2.1.3 Volume.
2.4.2.1.4 Area.
2.4.2.1.5 Calculation of source hazardous waste quantity value.
2.4.2.2 Calculation of hazardous waste quantity factor value.
2.4.3 Waste characteristics factor category value.
2.4.3.1 Factor category value.
2.4.3.2 Factor category value, considering bioaccumulation
potential.
2.5 Targets.
2.5.1 Determination of level of actual contamination at a sampling
location.
2.5.2 Comparison to benchmarks.
3.0 Ground Water Migration Pathway.
3.0.1 General considerations.
3.0.1.1 Ground water target distance limit.
3.0.1.2 Aquifer boundaries.
3.0.1.2.1 Aquifer interconnections.
3.0.1.2.2 Aquifer discontinuities.
3.0.1.3 Karst aquifer.
3.1 Likelihood of release.
3.1.1 Observed release.
3.1.2 Potential to release.
3.1.2.1 Containment.
3.1.2.2 Net precipitation.
3.1.2.3 Depth to aquifer.
3.1.2.4 Travel time.
3.1.2.5 Calculation of potential to release factor value.
3.1.3 Calculation of likelihood of release factor category value.
3.2 Waste characteristics.
3.2.1 Toxicity/mobility.
3.2.1.1 Toxicity.
3.2.1.2 Mobility.
3.2.1.3 Calculation of toxicity/mobility factor value.
3.2.2 Hazardous waste quantity.
3.2.3 Calculation of waste characteristics factor category value.
3.3 Targets.
3.3.1 Nearest well.
3.3.2 Population.
3.3.2.1 Level of contamination.
3.3.2.2 Level I concentrations.
3.3.2.3 Level II concentrations.
3.3.2.4 Potential contamination.
3.3.2.5 Calculation of population factor value.
3.3.3 Resources.
3.3.4 Wellhead Protection Area.
3.3.5 Calculation of targets factor category value.
3.4 Ground water migration score for an aquifer.
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3.5 Calculation of ground water migration pathway score.
4.0 Surface Water Migration Pathway.
4.0.1 Migration components.
4.0.2 Surface water categories.
4.1 Overland/flood migration component.
4.1.1 General considerations.
4.1.1.1 Definition of hazardous substance migration path for
overland/flood migration component.
4.1.1.2 Target distance limit.
4.1.1.3 Evaluation of overland/flood migration component.
4.1.2 Drinking water threat.
4.1.2.1 Drinking water threat-likelihood of release.
4.1.2.1.1 Observed release.
4.1.2.1.2 Potential to release.
4.1.2.1.2.1 Potential to release by overland flow.
4.1.2.1.2.1.1 Containment.
4.1.2.1.2.1.2 Runoff.
4.1.2.1.2.1.3 Distance to surface water.
4.1.2.1.2.1.4 Calculation of factor value for potential to release
by overland flow.
4.1.2.1.2.2 Potential to release by flood.
4.1.2.1.2.2.1 Containment (flood).
4.1.2.1.2.2.2 Flood frequency.
4.1.2.1.2.2.3 Calculation of factor value for potential to release
by flood.
4.1.2.1.2.3 Calculation of potential to release factor value.
4.1.2.1.3 Calculation of drinking water threat-likelihood of release
factor category value.
4.1.2.2 Drinking water threat-waste characteristics.
4.1.2.2.1 Toxicity/persistence.
4.1.2.2.1.1 Toxicity.
4.1.2.2.1.2 Persistence.
4.1.2.2.1.3 Calculation of toxicity/persistence factor value.
4.1.2.2.2 Hazardous waste quantity.
4.1.2.2.3 Calculation of drinking water threat-waste characteristics
factor category value.
4.1.2.3 Drinking water threat-targets.
4.1.2.3.1 Nearest intake.
4.1.2.3.2 Population.
4.1.2.3.2.1 Level of contamination.
4.1.2.3.2.2 Level I concentrations.
4.1.2.3.2.3 Level II concentrations.
4.1.2.3.2.4 Potential contamination.
4.1.2.3.2.5 Calculation of population factor value.
4.1.2.3.3 Resources.
4.1.2.3.4 Calculation of drinking water threat-targets factor
category value.
4.1.2.4 Calculation of the drinking water threat score for a
watershed.
4.1.3 Human food chain threat.
4.1.3.1 Human food chain threat-likelihood of release.
4.1.3.2 Human food chain threat-waste characteristics.
4.1.3.2.1 Toxicity/persistence/bioaccumulation.
4.1.3.2.1.1 Toxicity.
4.1.3.2.1.2 Persistence.
4.1.3.2.1.3 Bioaccumulation potential.
4.1.3.2.1.4 Calculation of toxicity/persistence/bioaccumulation
factor value.
4.1.3.2.2 Hazardous waste quantity.
4.1.3.2.3 Calculation of human food chain threat-waste
characteristics factor category value.
4.1.3.3 Human food chain threat-targets.
4.1.3.3.1 Food chain individual.
4.1.3.3.2 Population.
4.1.3.3.2.1 Level I concentrations.
4.1.3.3.2.2 Level II concentrations.
4.1.3.3.2.3 Potential human food chain contamination.
4.1.3.3.2.4 Calculation of population factor value.
4.1.3.3.3 Calculation of human food chain threat-targets factor
category value.
4.1.3.4 Calculation of human food chain threat score for a
watershed.
4.1.4 Environmental threat.
4.1.4.1 Environmental threat-likelihood of release.
4.1.4.2 Environmental threat-waste characteristics.
4.1.4.2.1 Ecosystem toxicity/persistence/bioaccumulation.
4.1.4.2.1.1 Ecosystem toxicity.
4.1.4.2.1.2 Persistence.
4.1.4.2.1.3 Ecosystem bioaccumulation potential.
4.1.4.2.1.4 Calculation of ecosystem toxicity/persistence/
bioaccumulation factor value.
4.1.4.2.2 Hazardous waste quantity.
4.1.4.2.3 Calculation of environmental threat-waste characteristics
factor category value.
4.1.4.3 Environmental threat-targets.
4.1.4.3.1 Sensitive environments.
4.1.4.3.1.1 Level I concentrations.
4.1.4.3.1.2 Level II concentrations.
4.1.4.3.1.3 Potential contamination.
4.1.4.3.1.4 Calculation of environmental threat-targets factor
category value.
4.1.4.4 Calculation of environmental threat score for a watershed.
4.1.5 Calculation of overland/flood migration component score for a
watershed.
4.1.6 Calculation of overland/flood migration component score.
4.2 Ground water to surface water migration component.
4.2.1 General Considerations.
4.2.1.1 Eligible surface waters.
4.2.1.2 Definition of hazardous substance migration path for ground
water to surface water migration component.
4.2.1.3 Observed release of a specific hazardous substance to
surface water in-water segment.
4.2.1.4 Target distance limit.
4.2.1.5 Evaluation of ground water to surface water migration
component.
4.2.2 Drinking water threat.
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4.2.2.1 Drinking water threat-likelihood of release.
4.2.2.1.1 Observed release.
4.2.2.1.2 Potential to release.
4.2.2.1.3 Calculation of drinking water threat-likelihood of release
factor category value.
4.2.2.2 Drinking water threat-waste characteristics.
4.2.2.2.1 Toxicity/mobility/persistence.
4.2.2.2.1.1 Toxicity.
4.2.2.2.1.2 Mobility.
4.2.2.2.1.3 Persistence.
4.2.2.2.1.4 Calculation of toxicity/mobility/persistence factor
value.
4.2.2.2.2 Hazardous waste quantity.
4.2.2.2.3 Calculation of drinking water threat-waste characteristics
factor category value.
4.2.2.3 Drinking water threat-targets.
4.2.2.3.1 Nearest intake.
4.2.2.3.2 Population.
4.2.2.3.2.1 Level I concentrations.
4.2.2.3.2.2 Level II concentrations.
4.2.2.3.2.3 Potential contamination.
4.2.2.3.2.4 Calculation of population factor value.
4.2.2.3.3 Resources.
4.2.2.3.4 Calculation of drinking water threat-targets factor
category value.
4.2.2.4 Calculation of drinking water threat score for a watershed.
4.2.3 Human food chain threat.
4.2.3.1 Human food chain threat-likelihood of release.
4.2.3.2 Human food chain threat-waste characteristics.
4.2.3.2.1 Toxicity/mobility/persistence/bioaccumulation.
4.2.3.2.1.1 Toxicity.
4.2.3.2.1.2 Mobility.
4.2.3.2.1.3 Persistence.
4.2.3.2.1.4 Bioaccumulation potential.
4.2.3.2.1.5 Calculation of toxicity/mobility/persistence/
bioaccumulation factor value.
4.2.3.2.2 Hazardous waste quantity.
4.2.3.2.3 Calculation of human food chain threat-waste
characteristics factor category value.
4.2.3.3 Human food chain threat-targets.
4.2.3.3.1 Food chain individual.
4.2.3.3.2 Population.
4.2.3.3.2.1 Level I concentrations.
4.2.3.3.2.2 Level II concentrations.
4.2.3.3.2.3 Potential human food chain contamination.
4.2.3.3.2.4 Calculation of population factor value.
4.2.3.3.3 Calculation of human food chain threat-targets factor
category value.
4.2.3.4 Calculation of human food chain threat score for a
watershed.
4.2.4 Environmental threat.
4.2.4.1 Environmental threat-likelihood of release.
4.2.4.2 Environmental threat-waste characteristics.
4.2.4.2.1 Ecosystem toxicity/mobility/persistence/bioaccumulation.
4.2.4.2.1.1 Ecosystem toxicity.
4.2.4.2.1.2 Mobility.
4.2.4.2.1.3 Persistence.
4.2.4.2.1.4 Ecosystem bioaccumulation potential.
4.2.4.2.1.5 Calculation of ecosystem toxicity/mobility/persistence/
bioaccumulation factor value.
4.2.4.2.2 Hazardous waste quantity.
4.2.4.2.3 Calculation of environmental threat-waste characteristics
factor category value.
4.2.4.3 Environmental threat-targets.
4.2.4.3.1 Sensitive environments.
4.2.4.3.1.1 Level I concentrations.
4.2.4.3.1.2 Level II concentrations.
4.2.4.3.1.3 Potential contamination.
4.2.4.3.1.4 Calculation of environmental threat-targets factor
category value.
4.2.4.4 Calculation of environmental threat score for a watershed.
4.2.5 Calculation of ground water to surface water migration component
score for a watershed.
4.2.6 Calculation of ground water to surface water migration component
score.
4.3 Calculation of surface water migration pathway score.
5.0 Soil Exposure and Subsurface Intrusion Pathway.
5.0.1 Exposure components.
5.1 Soil exposure component.
5.1.0 General considerations.
5.1.1 Resident population threat.
5.1.1.1 Likelihood of exposure.
5.1.1.2 Waste characteristics.
5.1.1.2.1 Toxicity.
5.1.1.2.2 Hazardous waste quantity.
5.1.1.2.3 Calculation of waste characteristics factor category
value.
5.1.1.3 Targets.
5.1.1.3.1 Resident individual.
5.1.1.3.2 Resident population.
5.1.1.3.2.1 Level I concentrations.
5.1.1.3.2.2 Level II concentrations.
5.1.1.3.2.3 Calculation of resident population factor value.
5.1.1.3.3 Workers.
5.1.1.3.4 Resources.
5.1.1.3.5 Terrestrial sensitive environments.
5.1.1.3.6 Calculation of resident population targets factor category
value.
5.1.1.4 Calculation of resident population threat score.
5.1.2 Nearby population threat.
5.1.2.1 Likelihood of exposure.
5.1.2.1.1 Attractiveness/accessibility.
5.1.2.1.2 Area of contamination.
5.1.2.1.3 Likelihood of exposure factor category value.
5.1.2.2 Waste characteristics.
5.1.2.2.1 Toxicity.
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5.1.2.2.2 Hazardous waste quantity.
5.1.2.2.3 Calculation of waste characteristics factor category
value.
5.1.2.3 Targets.
5.1.2.3.1 Nearby individual.
5.1.2.3.2 Population within 1 mile.
5.1.2.3.3 Calculation of nearby population targets factor category
value.
5.1.2.4 Calculation of nearby population threat score.
5.1.3 Calculation of soil exposure component score.
5.2 Subsurface intrusion component.
5.2.0 General considerations.
5.2.1 Subsurface intrusion component.
5.2.1.1 Likelihood of exposure.
5.2.1.1.1 Observed exposure.
5.2.1.1.2 Potential for exposure.
5.2.1.1.2.1 Structure containment.
5.2.1.1.2.2 Depth to contamination.
5.2.1.1.2.3 Vertical migration.
5.2.1.1.2.4 Vapor migration potential.
5.2.1.1.2.5 Calculation of potential for exposure factor value.
5.2.1.1.3 Calculation of likelihood of exposure factor category
value.
5.2.1.2 Waste characteristics.
5.2.1.2.1 Toxicity/degradation.
5.2.1.2.1.1 Toxicity.
5.2.1.2.1.2 Degradation.
5.2.1.2.1.3 Calculation of toxicity/degradation factor value.
5.2.1.2.2 Hazardous waste quantity.
5.2.1.2.3 Calculation of waste characteristics factor category
value.
5.2.1.3 Targets.
5.2.1.3.1 Exposed individual.
5.2.1.3.2 Population.
5.2.1.3.2.1 Level I concentrations.
5.2.1.3.2.2 Level II concentrations.
5.2.1.3.2.3 Population within area(s) of subsurface contamination.
5.2.1.3.2.4 Calculation of population factor value.
5.2.1.3.3 Resources.
5.2.1.3.4 Calculation of targets factor category value.
5.2.2 Calculation of subsurface intrusion component score.
5.3 Calculation of the soil exposure and subsurface intrusion pathway
score.
6.0 Air Migration Pathway.
6.1 Likelihood of release.
6.1.1 Observed release.
6.1.2 Potential to release.
6.1.2.1 Gas potential to release.
6.1.2.1.1 Gas containment.
6.1.2.1.2 Gas source type.
6.1.2.1.3 Gas migration potential.
6.1.2.1.4 Calculation of gas potential to release value.
6.1.2.2 Particulate potential to release.
6.1.2.2.1 Particulate containment.
6.1.2.2.2 Pariculate source type.
6.1.2.2.3 Particulate migration potential.
6.1.2.2.4 Calculation of particulate potential to release value.
6.1.2.3 Calculation of potential to release factor value for the
site.
6.1.3 Calculation of likelihood of release factor category value.
6.2 Waste characteristics.
6.2.1 Toxicity/mobility.
6.2.1.1 Toxicity.
6.2.1.2 Mobility.
6.2.1.3 Calculation of toxicity/mobility factor value.
6.2.2 Hazardous waste quantity.
6.2.3 Calculation of waste characteristics factor category value.
6.3 Targets.
6.3.1 Nearest individual.
6.3.2 Population.
6.3.2.1 Level of contamination.
6.3.2.2 Level I concentrations.
6.3.2.3 Level II concentrations.
6.3.2.4 Potential contamination.
6.3.2.5 Calculation of population factor value.
6.3.3 Resources.
6.3.4 Sensitive environments.
6.3.4.1 Actual contamination.
6.3.4.2 Potential contamination.
6.3.4.3 Calculation of sensitive environments factor value.
6.3.5 Calculation of targets factor category value.
6.4 Calculation of air migration pathway score.
7.0 Sites Containing Radioactive Substances.
7.1 Likelihood of release/likelihood of exposure.
7.1.1 Observed release/observed contamination/observed exposure.
7.1.2 Potential to release/potential for exposure.
7.2 Waste characteristics.
7.2.1 Human toxicity.
7.2.2 Ecosystem toxicity.
7.2.3 Persistence/degradation.
7.2.4 Selection of substance potentially posing greatest hazard.
7.2.5 Hazardous waste quantity.
7.2.5.1 Source hazardous waste quantity for radionuclides.
7.2.5.1.1 Radionuclide constituent quantity (Tier A).
7.2.5.1.2 Radionuclide wastestream quantity (Tier B).
7.2.5.1.3 Calculation of source hazardous waste quantity value for
radionuclides.
7.2.5.2 Calculation of hazardous waste quantity factor value for
radionuclides.
7.2.5.3 Calculation of hazardous waste quantity factor value for
sites containing mixed radioactive and other hazardous substances.
7.3 Targets.
7.3.1 Level of contamination at a sampling location.
7.3.2 Comparison to benchmarks.
7.3.3 Weighting of targets within an area of subsurface contamination.
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List of Figures
Figure number
3-1 Overview of ground water migration pathway.
3-2 Net precipitation factor values.
4-1 Overview of surface water overland/flood migration component.
4-2 Overview of ground water to surface water migration component.
4-3 Sample determination of ground water to surface water angle.
5-1 Overview of the soil exposure and subsurface intrusion pathway.
6-1 Overview of air migration pathway.
6-2 Particulate migration potential factor values.
6-3 Particulate mobility factor values.
List of Tables
Table number
2-1 Sample pathway scoresheet.
2-2 Sample source characterization worksheet.
2-3 Observed release criteria for chemical analysis.
2-4 Toxicity factor evaluation.
2-5 Hazardous waste quantity evaluation equations.
2-6 Hazardous waste quantity factor values.
2-7 Waste characteristics factor category values.
3-1 Ground water migration pathway scoresheet.
3-2 Containment factor values for ground water migration pathway.
3-3 Monthly latitude adjusting values.
3-4 Net precipitation factor values.
3-5 Depth to aquifer factor values.
3-6 Hydraulic conductivity of geologic materials.
3-7 Travel time factor values.
3-8 Ground water mobility factor values.
3-9 Toxicity/mobility factor values.
3-10 Health-based benchmarks for hazardous substances in drinking water.
3-11 Nearest well factor values.
3-12 Distance-weighted population values for potential contamination
factor for ground water migration pathway.
4-1 Surface water overland/flood migration component scoresheet.
4-2 Containment factor values for surface water migration pathway.
4-3 Drainage area values.
4-4 Soil group designations.
4-5 Rainfall/runoff values.
4-6 Runoff factor values.
4-7 Distance to surface water factor values.
4-8 Containment (flood) factor values.
4-9 Flood frequency factor values.
4-10 Persistence factor values--half-life.
4-11 Persistence factor values--log Kow
4-12 Toxicity/persistence factor values.
4-13 Surface water dilution weights.
4-14 Dilution-weighted population values for potential contamination
factor for surface water migration pathway.
4-15 Bioaccumulation potential factor values.
4-16 Toxicity/persistence/bioaccumulation factor values.
4-17 Health-based benchmarks for hazardous substances in human food
chain.
4-18 Human food chain population values.
4-19 Ecosystem toxicity factor values.
4-20 Ecosystem toxicity/persistence factor values.
4-21 Ecosystem toxicity/persistence/bioaccumulation factor values.
4-22 Ecological-based benchmarks for hazardous substances in surface
water.
4-23 Sensitive environments rating values.
4-24 Wetlands rating values for surface water migration pathway.
4-25 Ground water to surface water migration component scoresheet.
4-26 Toxicity/mobility/persistence factor values.
4-27 Dilution weight adjustments.
4-28 Toxicity/mobility/persistence/bioaccumulation factor values.
4-29 Ecosystem toxicity/mobility/persistence factor values.
4-30 Ecosystem toxicity/mobility/persistence/bioaccumulation factor
values.
5-1 Soil exposure component scoresheet.
5-2 Hazardous waste quantity evaluation equations for soil exposure
component.
5-3 Health-based benchmarks for hazardous substances in soils.
5-4 Factor values for workers.
5-5 Terrestrial sensitive environments rating values.
5-6 Attractiveness/accessibility values.
5-7 Area of contamination factor values.
5-8 Nearby population likelihood of exposure factor values.
5-9 Nearby individual factor values.
5-10 Distance-weighted population values for nearby population threat.
5-11 Subsurface intrusion component scoresheet.
5-12 Structure containment.
5-13 Depth to contamination.
5-14 Effective porosity/permeability of geological materials.
5-15 Vertical migration factor values.
5-16 Values for vapor pressure and Henry's constant.
5-17 Vapor migration potential factor values for a hazardous substance.
5-18 Degradation factor value table.
5-19 Hazardous waste quantity evaluation equations for subsurface
intrusion component.
5-20 Health-based benchmarks for hazardous substances in the subsurface
intrusion component.
5-21 Weighting factor values for populations within an area of
subsurface contamination.
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6-1 Air migration pathway scoresheet.
6-2 Gas potential to release evaluation.
6-3 Gas containment factor values.
6-4 Source type factor values.
6-5 Values for vapor pressure and Henry's constant.
6-6 Gas migration potential values for a hazardous substance.
6-7 Gas migration potential values for the source.
6-8 Particulate potential to release evaluation.
6-9 Particulate containment factor values.
6-10 Particulate migration potential values.
6-11 Gas mobility factor values.
6-12 Particulate mobility factor values.
6-13 Toxicity/mobility factor values.
6-14 Health-based benchmarks for hazardous substances in air.
6-15 Air migration pathway distance weights.
6-16 Nearest individual factor values.
6-17 Distance-weighted population values for potential contamination
factor for air pathway.
6-18 Wetlands rating values for air migration pathway.
7-1 HRS factors evaluated differently for radionuclides.
7-2 Toxicity factor values for radionuclides.
1.0 Introduction
The Hazard Ranking System (HRS) is the principal mechanism the U.S.
Environmental Protection Agency (EPA) uses to place sites on the
National Priorities List (NPL). The HRS serves as a screening device to
evaluate the potential for releases of uncontrolled hazardous substances
to cause human health or environmental damage. The HRS provides a
measure of relative rather than absolute risk. It is designed so that it
can be consistently applied to a wide variety of sites.
1.1 Definitions
Acute toxicity: Measure of toxicological responses that result from
a single exposure to a substance or from multiple exposures within a
short period of time (typically several days or less). Specific measures
of acute toxicity used within the HRS include lethal dose50
(LD50) and lethal concentration50
(LC50), typically measured within a 24-hour to 96-hour
period.
Ambient Aquatic Life Advisory Concentrations (AALACs): EPA's
advisory concentration limit for acute or chronic toxicity to aquatic
organisms as established under section 304(a)(1) of the Clean Water Act,
as amended.
Ambient Water Quality Criteria (AWQC)/National Recommended Water
Quality Criteria: EPA's maximum acute (Criteria Maximum Concentration or
CMC) or chronic (Criterion Continuous Concentration or CCC) toxicity
concentrations for protection of aquatic life and its uses as
established under section 304(a)(1) of the Clean Water Act, as amended.
Bioconcentration factor (BCF): Measure of the tendency for a
substance to accumulate in the tissue of an aquatic organism. BCF is
determined by the extent of partitioning of a substance, at equilibrium,
between the tissue of an aquatic organism and water. As the ratio of
concentration of a substance in the organism divided by the
concentration in water, higher BCF values reflect a tendency for
substances to accumulate in the tissue of aquatic organisms. [unitless].
Biodegradation: Chemical reaction of a substance induced by
enzymatic activity of microorganisms.
CERCLA: Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (Pub. L. 96-510, as amended).
Channelized flow: Natural geological or manmade features such as
karst, fractures, lava tubes, and utility conduits (e.g., sewer lines),
which allow ground water and/or soil gas to move through the subsurface
environment more easily.
Chronic toxicity: Measure of toxicological responses that result
from repeated exposure to a substance over an extended period of time
(typically 3 months or longer). Such responses may persist beyond the
exposure or may not appear until much later in time than the exposure.
HRS measures of chronic toxicity include Reference Dose (RfD) and
Reference Concentration (RfC) values.
Contract Laboratory Program (CLP): Analytical program developed for
CERCLA waste site samples to fill the need for legally defensible
analytical results supported by a high level of quality assurance and
documentation.
Contract-Required Detection Limit (CRDL): Term equivalent to
contract-required quantitation limit, but used primarily for inorganic
substances.
Contract-Required Quantitation Limit (CRQL): Substance-specific
level that a CLP laboratory must be able to routinely and reliably
detect in specific sample matrices. It is not the lowest detectable
level achievable, but rather the level that a CLP laboratory should
reasonably quantify. The CRQL may or may not be equal to the
quantitation limit of a given substance in a given sample. For HRS
purposes, the term CRQL refers to both the contract-required
quantitation limit and the contract-required detection limit.
Crawl space: The enclosed or semi-enclosed area between a regularly
occupied structure's foundation (e.g., pier and beam construction) and
the ground surface. Crawl space samples are collected to determine the
concentration of hazardous substances in the air beneath a regularly
occupied structure.
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Curie (Ci): Measure used to quantify the amount of radioactivity.
One curie equals 37 billion nuclear transformations per second, and one
picocurie (pCi) equals 10-12 Ci.
Decay product: Isotope formed by the radioactive decay of some other
isotope. This newly formed isotope possesses physical and chemical
properties that are different from those of its parent isotope, and may
also be radioactive.
Detection Limit (DL): Lowest amount that can be distinguished from
the normal random ``noise'' of an analytical instrument or method. For
HRS purposes, the detection limit used is the method detection limit
(MDL) or, for real-time field instruments, the detection limit of the
instrument as used in the field.
Dilution weight: Parameter in the HRS surface water migration
pathway that reduces the point value assigned to targets as the flow or
depth of the relevant surface water body increases. [unitless].
Distance weight: Parameter in the HRS air migration pathway, ground
water migration pathway, and the soil exposure component of the soil
exposure and subsurface intrusion pathway that reduces the point value
assigned to targets as their distance increases from the site.
[unitless].
Distribution coefficient (Kd): Measure of the extent of partitioning
of a substance between geologic materials (for example, soil, sediment,
rock) and water (also called partition coefficient). The distribution
coefficient is used in the HRS in evaluating the mobility of a substance
for the ground water migration pathway. [ml/g].
ED10 (10 percent effective dose): Estimated dose associated with a
10 percent increase in response over control groups. For HRS purposes,
the response considered is cancer. [milligrams toxicant per kilogram
body weight per day (mg/kg-day)].
Food and Drug Administration Action Level (FDAAL): Under section 408
of the Federal Food, Drug and Cosmetic Act, as amended, concentration of
a poisonous or deleterious substance in human food or animal feed at or
above which FDA will take legal action to remove adulterated products
from the market. Only FDAALs established for fish and shellfish apply in
the HRS.
Half-life: Length of time required for an initial concentration of a
substance to be halved as a result of loss through decay. The HRS
considers five decay processes for assigning surface water persistence:
Biodegradation, hydrolysis, photolysis, radioactive decay, and
volatilization. The HRS considers two decay processes for assigning
subsurface intrusion degradation: Biodegradation and hydrolysis.
Hazardous substance: CERCLA hazardous substances, pollutants, and
contaminants as defined in CERCLA sections 101(14) and 101(33), except
where otherwise specifically noted in the HRS.
Hazardous wastestream: Material containing CERCLA hazardous
substances (as defined in CERCLA section 101[14]) that was deposited,
stored, disposed, or placed in, or that otherwise migrated to, a source.
HRS ``factor'': Primary rating elements internal to the HRS.
HRS ``factor category'': Set of HRS factors (that is, likelihood of
release [or exposure], waste characteristics, targets).
HRS ``migration pathways'': HRS ground water, surface water, and air
migration pathways.
HRS ``pathway'': Set of HRS factor categories combined to produce a
score to measure relative risks posed by a site in one of four
environmental pathways (that is, ground water, surface water, soil
exposure and subsurface intrusion, and air).
HRS ``site score'': Composite of the four HRS pathway scores.
Henry's law constant: Measure of the volatility of a substance in a
dilute solution of water at equilibrium. It is the ratio of the vapor
pressure exerted by a substance in the gas phase over a dilute aqueous
solution of that substance to its concentration in the solution at a
given temperature. For HRS purposes, use the value reported at or near
25 [deg]C. [atmosphere-cubic meters per mole (atm-m \3\/mol)].
Hydrolysis: Chemical reaction of a substance with water.
Indoor air: The air present within a structure.
Inhalation Unit Risk (IUR): The upper-bound excess lifetime cancer
risk estimated to result from continuous exposure to an agent (i.e.,
hazardous substance) at a concentration of 1[micro]g/m\3\ in air.
Karst: Terrain with characteristics of relief and drainage arising
from a high degree of rock solubility in natural waters. The majority of
karst occurs in limestones, but karst may also form in dolomite, gypsum,
and salt deposits. Features associated with karst terrains typically
include irregular topography, sinkholes, vertical shafts, abrupt ridges,
caverns, abundant springs, and/or disappearing streams. Karst aquifers
are associated with karst terrain.
LC50 (lethal concentration, 50 percent): Concentration of a
substance in air [typically micrograms per cubic meter ([micro]g/m\3\)]
or water [typically micrograms per liter ([micro]g/l)] that kills 50
percent of a group of exposed organisms. The LC50 is used in
the HRS in assessing acute toxicity.
LD50 (lethal dose, 50 percent): Dose of a substance that kills 50
percent of a group of exposed organisms. The LD50 is used in
the HRS in assessing acute toxicity [milligrams toxicant per kilogram
body weight (mg/kg)].
Maximum Contaminant Level (MCL): Under section 1412 of the Safe
Drinking Water Act,
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as amended, the maximum permissible concentration of a substance in
water that is delivered to any user of a public water supply.
Maximum Contaminant Level Goal (MCLG): Under section 1412 of the
Safe Drinking Water Act, as amended, a nonenforceable concentration for
a substance in drinking water that is protective of adverse human health
effects and allows an adequate margin of safety.
Method Detection Limit (MDL): Lowest concentration of analyte that a
method can detect reliably in either a sample or blank.
Mixed radioactive and other hazardous substances: Material
containing both radioactive hazardous substances and nonradioactive
hazardous substances, regardless of whether these types of substances
are physically separated, combined chemically, or simply mixed together.
National Ambient Air Quality Standards (NAAQS): Primary standards
for air quality established under sections 108 and 109 of the Clean Air
Act, as amended.
National Emission Standards for Hazardous Air Pollutants (NESHAPs):
Standards established for substances listed under section 112 of the
Clean Air Act, as amended. Only those NESHAPs promulgated in ambient
concentration units apply in the HRS.
Non-Aqueous Phase Liquid (NAPL): Contaminants and substances that
are water-immiscible liquids composed of constituents with varying
degrees of water solubility.
Octanol-water partition coefficient (Kow [or P]): Measure of the
extent of partitioning of a substance between water and octanol at
equilibrium. The Kow is determined by the ratio between the
concentration in octanol divided by the concentration in water at
equilibrium. [unitless].
Organic carbon partition coefficient (Koc): Measure of the extent of
partitioning of a substance, at equilibrium, between organic carbon in
geologic materials and water. The higher the Koc, the more
likely a substance is to bind to geologic materials than to remain in
water. [ml/g].
Photolysis: Chemical reaction of a substance caused by direct
absorption of solar energy (direct photolysis) or caused by other
substances that absorb solar energy (indirect photolysis).
Preferential subsurface intrusion pathways: Subsurface features such
as animal burrows, cracks in walls, spaces around utility lines, or
drains through which a hazardous substance moves more easily into a
regularly occupied structure.
Radiation: Particles (alpha, beta, neutrons) or photons (x- and
gamma-rays) emitted by radionuclides.
Radioactive decay: Process of spontaneous nuclear transformation,
whereby an isotope of one element is transformed into an isotope of
another element, releasing excess energy in the form of radiation.
Radioactive half-life: Time required for one-half the atoms in a
given quantity of a specific radionuclide to undergo radioactive decay.
Radioactive substance: Solid, liquid, or gas containing atoms of a
single radionuclide or multiple radionuclides.
Radioactivity: Property of those isotopes of elements that exhibit
radioactive decay and emit radiation.
Radionuclide/radioisotope: Isotope of an element exhibiting
radioactivity. For HRS purposes, ``radionuclide'' and ``radioisotope''
are used synonymously.
Reference concentration (RfC): An estimate of a continuous
inhalation exposure to the human population that is likely to be without
an appreciable risk of deleterious effects during a lifetime.
Reference dose (RfD): An estimate of a daily oral exposure to the
human population that is likely to be without an appreciable risk of
deleterious effects during a lifetime.
Regularly occupied structures: Structures with enclosed air space,
where people either reside, attend school or day care, or work on a
regular basis, or that were previously occupied but vacated due to a
site-related hazardous substance(s). This also includes resource
structures (e.g., library, church, tribal structure).
Removal action: Action that removes hazardous substances from the
site for proper disposal or destruction in a facility permitted under
the Resource Conservation and Recovery Act or the Toxic Substances
Control Act or by the Nuclear Regulatory Commission.
Roentgen (R): Measure of external exposures to ionizing radiation.
One roentgen equals that amount of x-ray or gamma radiation required to
produce ions carrying a charge of 1 electrostatic unit (esu) in 1 cubic
centimeter of dry air under standard conditions. One microroentgen
([micro]R) equals 10-6 R.
Sample quantitation limit (SQL): Quantity of a substance that can be
reasonably quantified given the limits of detection for the methods of
analysis and sample characteristics that may affect quantitation (for
example, dilution, concentration).
Screening concentration: Media-specific benchmark concentration for
a hazardous substance that is used in the HRS for comparison with the
concentration of that hazardous substance in a sample from that media.
The screening concentration for a specific hazardous substance
corresponds to its reference concentration for inhalation exposures or
reference dose for oral exposures, as appropriate, and, if the substance
is a human carcinogen with either a weight-of-evidence classification of
A, B, or C, or a weight-of-evidence classification of carcinogenic to
humans, likely to be carcinogenic to humans or suggestive evidence of
carcinogenic potential, to that concentration that
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corresponds to its 10-6 individual lifetime excess cancer
risk for inhalation exposures or for oral exposures, as appropriate.
Shallow ground water: The uppermost saturated zone, typically
unconfined.
Site: Area(s) where a hazardous substance has been deposited,
stored, disposed, or placed, or has otherwise come to be located. Such
areas may include multiple sources and may include the area between
sources.
Slope factor (also referred to as cancer potency factor): Estimate
of the probability of response (for example, cancer) per unit intake of
a substance over a lifetime. The slope factor is typically used to
estimate upper-bound probability of an individual developing cancer as a
result of exposure to a particular level of a human carcinogen with
either a weight-of-evidence classification of A, B, or C, or a weight-
of-evidence classification of carcinogenic to humans, likely to be
carcinogenic to humans or having suggestive evidence of carcinogenic
potential. [(mg/kg-day)-1 for non-radioactive substances and
(pCi)-1 for radioactive substances].
Soil gas: The gaseous elements and compounds in the small spaces
between particles of soil.
Soil porosity: The degree to which the total volume of soil is
permeated with pores or cavities through which fluids (including air or
gas) can move. It is typically calculated as the ratio of the pore
spaces within the soil to the overall volume of the soil.
Source: Any area where a hazardous substance has been deposited,
stored, disposed, or placed, plus those soils that have become
contaminated from migration of a hazardous substance. Sources do not
include those volumes of air, ground water, surface water, or surface
water sediments that have become contaminated by migration, except: In
the case of either a ground water plume with no identified source or
contaminated surface water sediments with no identified source, the
plume or contaminated sediments may be considered a source.
Subslab: The area immediately beneath a regularly occupied structure
with a basement foundation or a slab-on-grade foundation. Subslab
samples are collected to determine the concentration of hazardous
substances in the soil gas beneath a home or building.
Subsurface intrusion: The migration of hazardous substances from the
unsaturated zone and/or ground water into overlying structures.
Target distance limit: Maximum distance over which targets for the
site are evaluated. The target distance limit varies by HRS pathway.
Unit risk: The upper-bound excess lifetime cancer risk estimated to
result from continuous exposure to an agent (i.e., hazardous substance)
at a concentration of 1 [micro]g/L in water, or 1 [micro]g/m\3\ in air.
Unsaturated zone: The portion of subsurface between the land surface
and the zone of saturation. It extends from the ground surface to the
top of the shallowest ground water table (excluding localized or perched
water).
Uranium Mill Tailings Radiation Control Act (UMTRCA) Standards:
Standards for radionuclides established under sections 102, 104, and 108
of the Uranium Mill Tailings Radiation Control Act, as amended.
Vapor pressure: Pressure exerted by the vapor of a substance when it
is in equilibrium with its solid or liquid form at a given temperature.
For HRS purposes, use the value reported at or near 25 [deg]C.
[atmosphere or torr].
Volatilization: Physical transfer process through which a substance
undergoes a change of state from a solid or liquid to a gas.
Water solubility: Maximum concentration of a substance in pure water
at a given temperature. For HRS purposes, use the value reported at or
near 25 [deg]C. [milligrams per liter (mg/l)].
Weight-of-evidence: EPA classification system for characterizing the
evidence supporting the designation of a substance as a human
carcinogen. The EPA weight-of-evidence, depending on the date EPA
updated the profile, includes either the groupings:
Group A: Human carcinogen--sufficient evidence of
carcinogenicity in humans.
Group B1: Probable human carcinogen--limited
evidence of carcinogenicity in humans.
Group B2: Probable human carcinogen--sufficient
evidence of carcinogenicity in animals.
Group C: Possible human carcinogen--limited
evidence of carcinogenicity in animals.
Group D: Not classifiable as to human
carcinogenicity--applicable when there is no animal evidence, or when
human or animal evidence is inadequate.
Group E: Evidence of noncarcinogenicity for
humans.
Or the descriptors:
Carcinogenic to humans.
Likely to be carcinogenic to humans.
Suggestive evidence of carcinogenic potential.
Inadequate information to assess carcinogenic
potential.
Not likely to be carcinogenic to humans.
2.0 Evaluations Common to Multiple Pathways
2.1 Overview. The HRS site score (S) is the result of an evaluation
of four pathways:
Ground Water Migration (Sgw).
Surface Water Migration (Ssw).
Soil Exposure and Subsurface Intrusion
(Ssessi).
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Air Migration (Sa).
The ground water and air migration pathways use single threat
evaluations, while the surface water migration and soil exposure and
subsurface intrusion pathways use multiple threat evaluations. Three
threats are evaluated for the surface water migration pathway: Drinking
water, human food chain, and environmental. These threats are evaluated
for two separate migration components--overland/flood migration and
ground water to surface water migration. Two components are evaluated
for the soil exposure and subsurface intrusion pathway: Soil exposure
and subsurface intrusion. The soil exposure component evaluates two
threats: Resident population and nearby population, and the subsurface
intrusion component is a single threat evaluation.
The HRS is structured to provide a parallel evaluation for each of
these pathways, components, and threats. This section focuses on these
parallel evaluations, starting with the calculation of the HRS site
score and the individual pathway scores.
2.1.1 Calculation of HRS site score. Scores are first calculated for
the individual pathways as specified in sections 2 through 7 and then
are combined for the site using the following root-mean-square equation
to determine the overall HRS site score, which ranges from 0 to 100:
[GRAPHIC] [TIFF OMITTED] TR09JA17.062
2.1.2 Calculation of pathway score. Table 2-1, which is based on the
air migration pathway, illustrates the basic parameters used to
calculate a pathway score. As Table 2-1 shows, each pathway (component
or threat) score is the product of three ``factor categories'':
Likelihood of release, waste characteristics, and targets. (The soil
exposure and subsurface intrusion pathway uses likelihood of exposure
rather than likelihood of release.) Each of the three factor categories
contains a set of factors that are assigned numerical values and
combined as specified in sections 2 through 7. The factor values are
rounded to the nearest integer, except where otherwise noted.
2.1.3 Common evaluations. Evaluations common to all four HRS
pathways include:
Characterizing sources.
--Identifying sources (and, for the soil exposure and subsurface
intrusion pathway, areas of observed contamination, areas of observed
exposure and/or areas of subsurface contamination [see sections 5.1.0
and 5.2.0]).
--Identifying hazardous substances associated with each source (or
area of observed contamination, or observed exposure, or subsurface
contamination).
--Identifying hazardous substances available to a pathway.
Table 2-1--Sample Pathway Scoresheet
------------------------------------------------------------------------
Factor category Maximum value Value assigned
------------------------------------------------------------------------
Likelihood of Release
------------------------------------------------------------------------
1. Observed Release..................... 550
2. Potential to Release................. 500
3. Likelihood of Release (higher of 550
lines 1 and 2).........................
------------------------------------------------------------------------
Waste Characteristics
------------------------------------------------------------------------
4. Toxicity/Mobility.................... (\a\)
5. Hazardous Waste Quantity............. (\a\)
6. Waste Characteristics................ 100
------------------------------------------------------------------------
Targets
------------------------------------------------------------------------
7. Nearest Individual...................
7a. Level I......................... 50
7b. Level II........................ 45
7c. Potential Contamination......... 20
7d. Nearest Individual (higher of 50
lines 7a, 7b, or 7c)...............
8. Population........................... (\b\)
8a. Level I......................... (\b\)
8b. Level II........................ (\b\)
[[Page 120]]
8c. Potential Contamination......... (\b\)
8d. Total Population (lines
8a+8b+8c)..........................
9. Resources............................ 5
10. Sensitive Environments.............. (\b\)
10a. Actual Contamination........... (\b\)
10b. Potential Environments......... (\b\)
10c. Sensitive Environments (lines (\b\)
10a+10b)...........................
11. Targets (lines 7d+8d+9+10c)......... (\b\)
12. Pathway Score is the product of
Likelihood of Release, Waste
Characteristics, and Targets, divided
by 82,500. Pathway scores are limited
to a maximum of 100 points.............
------------------------------------------------------------------------
\a\ Maximum value applies to waste characteristics category. The product
of lines 4 and 5 is used in Table 2-7 to derive the value for the
waste characteristics factor category.
\b\ There is no limit to the human population or sensitive environments
factor values. However, the pathway score based solely on sensitive
environments is limited to a maximum of 60 points.
Scoring likelihood of release (or likelihood of
exposure) factor category.
--Scoring observed release (or observed exposure or observed
contamination).
--Scoring potential to release when there is no observed release.
Scoring waste characteristics factor category.
--Evaluating toxicity.
[squf] Combining toxicity with mobility, persistence, degradation
and/or bioaccumulation (or ecosystem bioaccumulation) potential, as
appropriate to the pathway (component or threat).
[squf] Evaluating hazardous waste quantity.
--Combining hazardous waste quantity with the other waste
characteristics factors.
[squf] Determining waste characteristics factor category value.
Scoring targets factor category.
--Determining level of contamination for targets.
These evaluations are essentially identical for the three migration
pathways (ground water, surface water, and air). However, the
evaluations differ in certain respects for the soil exposure and
subsurface intrusion pathway.
Section 7 specifies modifications that apply to each pathway when
evaluating sites containing radioactive substances.
Section 2 focuses on evaluations common at the pathway, component,
and threat levels. Note that for the ground water and surface water
migration pathways, separate scores are calculated for each aquifer (see
section 3.0) and each watershed (see sections 4.1.1.3 and 4.2.1.5) when
determining the pathway scores for a site. Although the evaluations in
section 2 do not vary when different aquifers or watersheds are scored
at a site, the specific factor values (for example, observed release,
hazardous waste quantity, toxicity/mobility) that result from these
evaluations can vary by aquifer and by watershed at the site. This can
occur through differences both in the specific sources and targets
eligible to be evaluated for each aquifer and watershed and in whether
observed releases can be established for each aquifer and watershed.
Such differences in scoring at the aquifer and watershed level are
addressed in sections 3 and 4, not section 2.
2.2 Characterize sources. Source characterization includes
identification of the following:
Sources (and areas of observed contamination,
areas of observed exposure, or areas of subsurface contamination) at the
site.
Hazardous substances associated with these
sources (or areas of observed contamination, areas of observed exposure,
or areas of subsurface contamination).
Pathways potentially threatened by these
hazardous substances.
Table 2-2 presents a sample worksheet for source characterization.
2.2.1 Identify sources. For the three migration pathways, identify
the sources at the site that contain hazardous substances. Identify the
migration pathway(s) to which each source applies. For the soil exposure
and subsurface intrusion pathway, identify areas of observed
contamination, areas of observed exposure, and/or areas of subsurface
contamination at the site (see sections 5.1.0 and 5.2.0).
Table 2-2--Sample Source Characterization Worksheet
Source: __
A. Source dimensions and hazardous waste quantity.
Hazardous constituent quantity: __
Hazardous wastestream quantity: __
Volume: __
Area: __
Area of observed contamination: __
Area of observed exposure: __
Area of subsurface contamination: __
B. Hazardous substances associated with the source.
[[Page 121]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Available to pathway
---------------------------------------------------------------------------------------------------------------------------
Air Surface Water (SW) Soil Exposure/Subsurface Intrusion (SESSI)
-------------------------- ------------------------------------------------------------------------------------
Hazardous substance Soil exposure Subsurface Intrusion
Ground ----------------------------------------------------------
Gas Particulate Water (GW) Overland/ GW to SW Area of Area of
flood Resident Nearby observed subsurface
exposure contamination
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 122]]
2.2.2 Identify hazardous substances associated with a source. For
each of the three migration pathways, consider those hazardous
substances documented in a source (for example, by sampling, labels,
manifests, oral or written statements) to be associated with that source
when evaluating each pathway. In some instances, a hazardous substance
can be documented as being present at a site (for example, by labels,
manifests, oral or written statements), but the specific source(s)
containing that hazardous substance cannot be documented. For the three
migration pathways, in those instances when the specific source(s)
cannot be documented for a hazardous substance, consider the hazardous
substance to be present in each source at the site, except sources for
which definitive information indicates that the hazardous substance was
not or could not be present.
For an area of observed contamination in the soil exposure component
of the soil exposure and subsurface intrusion pathway, consider only
those hazardous substances that meet the criteria for observed
contamination for that area (see section 5.1.0) to be associated with
that area when evaluating the pathway.
For an area of observed exposure or area of subsurface contamination
(see section 5.2.0) in the subsurface intrusion component of the soil
exposure and subsurface intrusion pathway, consider only those hazardous
substances that:
Meet the criteria for observed exposure, or
Meet the criteria for observed release in an area
of subsurface contamination and have a vapor pressure greater than or
equal to one torr or a Henry's constant greater than or equal to
10-\5\ atm-m\3\/mol, or
Meet the criteria for an observed release in a
structure within, or in a sample from below, an area of observed
exposure and have a vapor pressure greater than or equal to one torr or
a Henry's constant greater than or equal to 10-\5\ atm-m\3\/
mol.
2.2.3 Identify hazardous substances available to a pathway. In
evaluating each migration pathway, consider the following hazardous
substances available to migrate from the sources at the site to the
pathway:
Ground water migration.
--Hazardous substances that meet the criteria for an observed
release (see section 2.3) to ground water.
--All hazardous substances associated with a source with a ground
water containment factor value greater than 0 (see section 3.1.2.1).
Surface water migration--overland/flood component.
--Hazardous substances that meet the criteria for an observed
release to surface water in the watershed being evaluated.
--All hazardous substances associated with a source with a surface
water containment factor value greater than 0 for the watershed (see
sections 4.1.2.1.2.1.1 and 4.1.2.1.2.2.1).
Surface water migration--ground water to surface
water component.
--Hazardous substances that meet the criteria for an observed
release to ground water.
--All hazardous substances associated with a source with a ground
water containment factor value greater than 0 (see sections 4.2.2.1.2
and 3.1.2.1).
Air migration.
--Hazardous substances that meet the criteria for an observed
release to the atmosphere.
--All gaseous hazardous substances associated with a source with a
gas containment factor value greater than 0 (see section 6.1.2.1.1).
--All particulate hazardous substances associated with a source with
a particulate containment factor value greater than 0 (see section
6.1.2.2.1).
For each migration pathway, in those instances when
the specific source(s) containing the hazardous substance
cannot be documented, consider that hazardous substance to be
available to migrate to the pathway when it can be associated
(see section 2.2.2) with at least one source having a
containment factor value greater than 0 for that pathway.
In evaluating the soil exposure and subsurface intrusion pathway,
consider the following hazardous substances available to the pathway:
Soil exposure component--resident population threat.
--All hazardous substances that meet the criteria for observed
contamination at the site (see section 5.1.0).
Soil exposure component--nearby population threat.
--All hazardous substances that meet the criteria for observed
contamination at areas with an attractiveness/accessibility factor value
greater than 0 (see section 5.1.2.1.1).
Subsurface intrusion component.
--All hazardous substances that meet the criteria for observed
exposure at the site (see section 5.2.0).
--All hazardous substances with a vapor pressure greater than or
equal to one torr or a Henry's constant greater than or equal to
10-\5\ atm-m\3\/mol that meet the criteria for an observed
release in an area of subsurface contamination (see section 5.2.0).
--All hazardous substances that meet the criteria for an observed
release in a structure within, or in a sample from
[[Page 123]]
below, an area of observed exposure (see section 5.2.0).
2.3 Likelihood of release. Likelihood of release is a measure of the
likelihood that a waste has been or will be released to the environment.
The likelihood of release factor category is assigned the maximum value
of 550 for a migration pathway whenever the criteria for an observed
release are met for that pathway. If the criteria for an observed
release are met, do not evaluate potential to release for that pathway.
When the criteria for an observed release are not met, evaluate
potential to release for that pathway, with a maximum value of 500. The
evaluation of potential to release varies by migration pathway (see
sections 3, 4 and 6).
Establish an observed release either by direct observation of the
release of a hazardous substance into the media being evaluated (for
example, surface water) or by chemical analysis of samples appropriate
to the pathway being evaluated (see sections 3, 4 and 6). The minimum
standard to establish an observed release by chemical analysis is
analytical evidence of a hazardous substance in the media significantly
above the background level. Further, some portion of the release must be
attributable to the site. Use the criteria in Table 2-3 as the standard
for determining analytical significance. (The criteria in Table 2-3 are
also used in establishing observed contamination for the soil exposure
component and for establishing areas of observed exposure and areas of
subsurface contamination in the subsurface intrusion component of the
soil exposure and subsurface intrusion pathway, see section 5.1.0 and
section 5.2.0). Separate criteria apply to radionuclides (see section
7.1.1).
Table 2-3--Observed Release Criteria for Chemical Analysis
------------------------------------------------------------------------
-------------------------------------------------------------------------
Sample Measurement < Sample Quantitation Limit.\a\
No observed release is established.
Sample Measurement = Sample Quantitation Limit.\a\
An observed release is established as follows:
If the background concentration is not detected
(or is less than the detection limit), an observed release is
established when the sample measurement equals or exceeds the
sample quantitation limit.\a\
If the background concentration equals or exceeds
the detection limit, an observed release is established when the
sample measurement is 3 times or more above the background
concentration.
------------------------------------------------------------------------
\a\ If the sample quantitation limit (SQL) cannot be established,
determine if there is an observed release as follows:
--If the sample analysis was performed under the EPA Contract Laboratory
Program, use the EPA contract-required quantitation limit (CRQL) in
place of the SQL.
--If the sample analysis is not performed under the EPA Contract
Laboratory Program, use the detection limit (DL) in place of the SQL.
2.4 Waste characteristics. The waste characteristics factor category
includes the following factors: Hazardous waste quantity, toxicity, and
as appropriate to the pathway or threat being evaluated, mobility,
persistence, degradation, and/or bioaccumulation (or ecosystem
bioaccumulation) potential.
2.4.1 Selection of substance potentially posing greatest hazard. For
all pathways (components and threats), select the hazardous substance
potentially posing the greatest hazard for the pathway (component or
threat) and use that substance in evaluating the waste characteristics
category of the pathway (component or threat). For the three migration
pathways (and threats), base the selection of this hazardous substance
on the toxicity factor value for the substance, combined with its
mobility, persistence, and/or bioaccumulation (or ecosystem
bioaccumulation) potential factor values, as applicable to the migration
pathway (or threat). For the soil exposure component of the soil
exposure and subsurface intrusion pathway, base the selection on the
toxicity factor alone. For the subsurface intrusion component of the
soil exposure and subsurface intrusion pathway, base the selection on
the toxicity factor value for the substance, combined with its
degradation factor value. Evaluation of the toxicity factor is specified
in section 2.4.1.1. Use and evaluation of the mobility, persistence,
degradation, and/or bioaccumulation (or ecosystem bioaccumulation)
potential factors vary by pathway (component or threat) and are
specified under the appropriate pathway (component or threat) section.
Section 2.4.1.2 identifies the specific factors that are combined with
toxicity in evaluating each pathway (component or threat).
2.4.1.1 Toxicity factor. Evaluate toxicity for those hazardous
substances at the site that are available to the pathway being scored.
For all pathways and threats, except the surface water environmental
threat, evaluate human toxicity as specified below. For the surface
water environmental threat, evaluate ecosystem toxicity as specified in
section 4.1.4.2.1.1.
Establish human toxicity factor values based on quantitative dose-
response parameters for the following three types of toxicity:
Cancer--Use slope factors (also referred to as
cancer potency factors) combined with
[[Page 124]]
weight-of-evidence ratings for carcinogenicity for all exposure routes
except inhalation. Use inhalation unit risk (IUR) for inhalation
exposure. If an inhalation unit risk or a slope factor is not available
for a substance, use its ED10 value to estimate a slope
factor as follows:
[GRAPHIC] [TIFF OMITTED] TR09JA17.063
Noncancer toxicological responses of chronic
exposure--use reference dose (RfD) or reference concentration (RfC)
values as applicable.
Noncancer toxicological responses of acute
exposure--use acute toxicity parameters, such as the LD50.
Assign human toxicity factor values to a hazardous substance using
Table 2-4, as follows:
If RfD/RfC and slope factor/inhalation unit risk
values are available for the hazardous substance, assign the substance a
value from Table 2-4 for each. Select the higher of the two values
assigned and use it as the overall toxicity factor value for the
hazardous substance.
If either an RfD/RfC or slope factor/inhalation
unit risk value is available, but not both, assign the hazardous
substance an overall toxicity factor value from Table 2-4 based solely
on the available value (RfD/RfC or slope factor/inhalation unit risk).
If neither an RfD/RfC nor slope factor/inhalation
unit risk value is available, assign the hazardous substance an overall
toxicity factor value from Table 2-4 based solely on acute toxicity.
That is, consider acute toxicity in Table 2-4 only when both RfD/RfC and
slope factor/IUR values are not available.
If neither an RfD/RfC, nor slope factor/
inhalation unit risk, nor acute toxicity value is available, assign the
hazardous substance an overall toxicity factor value of 0 and use other
hazardous substances for which information is available in evaluating
the pathway.
Table 2-4--Toxicity Factor Evaluation
------------------------------------------------------------------------
Assigned value
------------------------------------------------------------------------
Chronic Toxicity (Human)
------------------------------------------------------------------------
Reference dose (RfD) (mg/kg-day):
RfD < 0.0005.......................................... 10,000
0.0005 <= RfD < 0.005................................. 1,000
0.005 <= RfD < 0.05................................... 100
0.05 <= RfD < 0.5..................................... 10
0.5 <= RfD............................................ 1
RfD not available..................................... 0
Reference concentration (RfC) (mg/m\3\):
RfC < 0.0001.......................................... 10,000
0.0001 <= RfC < 0.006................................. 1,000
0.006 <= RfC < 0.2.................................... 100
0.2 <= RfC < 2.0...................................... 10
2.0 <= RfC............................................ 1
RfC not available..................................... 0
------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Carcinogenicity (human)
-----------------------------------------------------------------------------------------------------------------
B or Likely to be C or Suggestive evidence
A or Carcinogenic to humans carcinogenic to humans of carcinogenic potential Assigned value
----------------------------------------------------------------------------------------------------------------
Weight-of-evidence\a\/Slope factor (mg/kg-day)-1
----------------------------------------------------------------------------------------------------------------
0.5 <= SF \b\........................... 5 <= SF................... 50 <= SF.................. 10,000
0.05 <= SF < 0.5........................ 0.5 <= SF < 5............. 5 <= SF < 50.............. 1,000
SF < 0.05............................... 0.05 <= SF < 0.5.......... 0.5 <= SF < 5............. 100
SF < 0.05................. SF < 0.5.................. 10
Slope factor not available.............. Slope factor not available Slope factor not available 0
----------------------------------------------------------------------------------------------------------------
Weight-of-evidence \a\/Inhalation unit risk ([micro]g/m\3\)
----------------------------------------------------------------------------------------------------------------
0.00004 <= IUR \c\...................... 0.0004 <= IUR............. 0.004 <= IUR.............. 10,000
0.00001 <= IUR < 0.00004................ 0.0001 <= IUR < 0.0004.... 0.001 <= IUR < 0.004...... 1,000
IUR < 0.00001........................... 0.00001 <= IUR < 0.0001... 0.0001 <= IUR < 0.001..... 100
< 0.00001................. IUR < 0.0001.............. 10
Inhalation unit risk not available...... Inhalation unit risk not Inhalation unit risk not 0
available. available.
----------------------------------------------------------------------------------------------------------------
\a\ A, B, and C, as well as Carcinogenic to humans, Likely to be carcinogenic to humans, and Suggestive evidence
of carcinogenic potential refer to weight-of-evidence categories. Assign substances with a weight-of-evidence
category of D (inadequate evidence of carcinogenicity) or E (evidence of lack of carcinogenicity), as well as
inadequate information to assess carcinogenic potential and not likely to be carcinogenic to humans a value of
0 for carcinogenicity.
\b\ SF = Slope factor.
\c\ IUR = Inhalation Unit Risk.
[[Page 125]]
----------------------------------------------------------------------------------------------------------------
Acute Toxicity (human)
-----------------------------------------------------------------------------------------------------------------
Dermal LD50 (mg/kg) Dust or mist LC50 Gas or vapor LC50
Oral LD50 (mg/kg) (mg/l) (ppm) Assigned value
----------------------------------------------------------------------------------------------------------------
LD50 < 5......................... LD50 < 2........... LC50 < 0.2......... LC50 < 20.......... 1,000
5 <= LD50 < 50................... 2 <= LD50 < 20..... 0.2 <= LC50 < 2.... 20 <= LC50 <200.... 100
50 <= LD50 < 500................. 20 <= LD50 < 200... 2 <= LC50 <20...... 200 <= LC50 <2,000. 10
500 <= LD50...................... 200 <= LD50........ 20 <= LC50......... 2,000 <= LC50...... 1
LD50 not available............... LD50 not available. LC50 not available. LC50 not available. 0
----------------------------------------------------------------------------------------------------------------
If a toxicity factor value of 0 is assigned to all hazardous
substances available to a particular pathway (that is, insufficient
toxicity data are available for evaluating all the substances), use a
default value of 100 as the overall human toxicity factor value for all
hazardous substances available to the pathway. For hazardous substances
having usable toxicity data for multiple exposure routes (for example,
inhalation and ingestion), consider all exposure routes and use the
highest assigned value, regardless of exposure route, as the toxicity
factor value. For HRS purposes, assign both asbestos and lead (and its
compounds) a human toxicity factor value of 10,000.
Separate criteria apply for assigning factor values for human
toxicity and ecosystem toxicity for radionuclides (see sections 7.2.1
and 7.2.2).
2.4.1.2 Hazardous substance selection. For each hazardous substance
evaluated for a migration pathway (or threat), combine the human
toxicity factor value (or ecosystem toxicity factor value) for the
hazardous substance with a mobility, persistence, and/or bioaccumulation
(or ecosystem bioaccumulation) potential factor value as follows:
Ground water migration.
--Determine a combined human toxicity/mobility factor value for the
hazardous substance (see section 3.2.1).
Surface water migration--overland/flood migration
component.
--Determine a combined human toxicity/persistence factor value for
the hazardous substance for the drinking water threat (see section
4.1.2.2.1).
--Determine a combined human toxicity/persistence/bioaccumulation
factor value for the hazardous substance for the human food chain threat
(see section 4.1.3.2.1).
--Determine a combined ecosystem toxicity/persistence/
bioaccumulation factor value for the hazardous substance for the
environmental threat (see section 4.1.4.2.1).
Surface water migration--ground water to surface
water migration component.
--Determine a combined human toxicity/mobility/persistence factor
value for the hazardous substance for the drinking water threat (see
section 4.2.2.2.1).
--Determine a combined human toxicity/mobility/persistence/
bioaccumulation factor value for the hazardous substance for the human
food chain threat (see section 4.2.3.2.1).
--Determine a combined ecosystem toxicity/mobility/persistence/
bioaccumulation factor value for the hazardous substance for the
environmental threat (see section 4.2.4.2.1).
Air migration.
--Determine a combined human toxicity/mobility factor value for the
hazardous substance (see section 6.2.1).
Determine each combined factor value for a hazardous substance by
multiplying the individual factor values appropriate to the pathway (or
threat). For each migration pathway (or threat) being evaluated, select
the hazardous substance with the highest combined factor value and use
that substance in evaluating the waste characteristics factor category
of the pathway (or threat).
For the soil exposure and subsurface intrusion pathway, determine
toxicity and toxicity/degradation factor values as follows:
Soil exposure and subsurface intrusion--soil exposure
component.
--Select the hazardous substance with the highest human toxicity
factor value from among the substances that meet the criteria for
observed contamination for the threat evaluated and use that substance
in evaluating the waste characteristics factor category (see section
5.1.1.2.1).
Soil exposure and subsurface intrusion--subsurface
intrusion component.
--Determine a combined human toxicity/degradation factor value for
each hazardous substance being evaluated that:
[squf] Meets the criteria for observed exposure, or
[squf] Meets the criteria for observed release in an area of
subsurface contamination and has a vapor pressure greater than or equal
to one torr or a Henry's constant greater than or equal to
10-5 atm-m\3\/mol, or
[squf] Meets the criteria for an observed release in a structure
within, or in a sample from below, an area of observed exposure and has
a vapor pressure greater than or equal to one torr or a Henry's
[[Page 126]]
constant greater than or equal to 10-5 atm-m\3\/mol.
--Select the hazardous substance with the highest combined factor
value and use that substance in evaluating the waste characteristics
factor category (see sections 5.2.1.2.1 and 5.2.1.2).
2.4.2 Hazardous waste quantity. Evaluate the hazardous waste
quantity factor by first assigning each source (or area of observed
contamination, area of observed exposure, or area of subsurface
contamination) a source hazardous waste quantity value as specified
below. Sum these values to obtain the hazardous waste quantity factor
value for the pathway being evaluated.
In evaluating the hazardous waste quantity factor for the three
migration pathways, allocate hazardous substances and hazardous
wastestreams to specific sources in the manner specified in section
2.2.2, except: Consider hazardous substances and hazardous wastestreams
that cannot be allocated to any specific source to constitute a separate
``unallocated source'' for purposes of evaluating only this factor for
the three migration pathways. Do not, however, include a hazardous
substance or hazardous wastestream in the unallocated source for a
migration pathway if there is definitive information indicating that the
substance or wastestream could only have been placed in sources with a
containment factor value of 0 for that migration pathway.
In evaluating the hazardous waste quantity factor for the soil
exposure component of the soil exposure and subsurface intrusion
pathway, allocate to each area of observed contamination only those
hazardous substances that meet the criteria for observed contamination
for that area of observed contamination and only those hazardous
wastestreams that contain hazardous substances that meet the criteria
for observed contamination for that area of observed contamination. Do
not consider other hazardous substances or hazardous wastestreams at the
site in evaluating this factor for the soil exposure component of the
soil exposure and subsurface intrusion pathway.
In evaluating the hazardous waste quantity factor for the subsurface
intrusion component of the soil exposure and subsurface intrusion
pathway, allocate to each area of observed exposure or area of
subsurface contamination only those hazardous substances and hazardous
wastestreams that contain hazardous substances that:
Meet the criteria for observed exposure, or
Meet the criteria for observed release in an area of
subsurface contamination and have a vapor pressure greater than or equal
to one torr or a Henry's constant greater than or equal to
10-5 atm-m\3\/mol, or
Meet the criteria for an observed release in a
structure within, or in a sample from below, an area of observed
exposure and have a vapor pressure greater than or equal to one torr or
a Henry's constant greater than or equal to 10-5 atm-m\3\/
mol.
Do not consider other hazardous substances or hazardous wastestreams
at the site in evaluating this factor for the subsurface intrusion
component of the soil exposure and subsurface intrusion pathway. When
determining the hazardous waste quantity for multi-subunit structures,
use the procedures identified in section 5.2.1.2.2.
2.4.2.1 Source hazardous waste quantity. For each of the three
migration pathways, assign a source hazardous waste quantity value to
each source (including the unallocated source) having a containment
factor value greater than 0 for the pathway being evaluated. Consider
the unallocated source to have a containment factor value greater than 0
for each migration pathway.
For the soil exposure component of the soil exposure and subsurface
intrusion pathway, assign a source hazardous waste quantity value to
each area of observed contamination, as applicable to the threat being
evaluated.
For the subsurface intrusion component of the soil exposure and
subsurface intrusion pathway, assign a source hazardous waste quantity
value to each regularly occupied structure within an area of observed
exposure or an area of subsurface contamination that has a structure
containment factor value greater than 0. If sufficient data is available
and state of the science shows there is no unacceptable risk due to
subsurface intrusion into a regularly occupied structure located within
an area of subsurface contamination, that structure can be excluded from
the area of subsurface contamination.
For determining all hazardous waste quantity calculations except for
an unallocated source or an area of subsurface contamination, evaluate
using the following four measures in the following hierarchy:
Hazardous constituent quantity.
Hazardous wastestream quantity.
Volume.
Area.
For the unallocated source, use only the first two measures. For an
area of subsurface contamination, evaluate non-radioactive hazardous
substances using only the last two measures and evaluate radioactive
hazardous substances using hazardous wastestream quantity only. See also
section 7.0 regarding the evaluation of radioactive substances.
Separate criteria apply for assigning a source hazardous waste
quantity value for radionuclides (see section 7.2.5).
2.4.2.1.1 Hazardous constituent quantity. Evaluate hazardous
constituent quantity for the source (or area of observed contamination)
based solely on the mass of CERCLA hazardous substances (as defined in
CERCLA
[[Page 127]]
section 101(14), as amended) allocated to the source (or area of
observed contamination), except:
For a hazardous waste listed pursuant to section
3001 of the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6901 et seq.,
determine its mass for the evaluation of this measure as follows:
--If the hazardous waste is listed solely for Hazard Code T (toxic
waste), include only the mass of constituents in the hazardous waste
that are CERCLA hazardous substances and not the mass of the entire
hazardous waste.
--If the hazardous waste is listed for any other Hazard Code (including
T plus any other Hazard Code), include the mass of the entire hazardous
waste.
For a RCRA hazardous waste that exhibits the
characteristics identified under section 3001 of RCRA, as amended,
determine its mass for the evaluation of this measure as follows:
--If the hazardous waste exhibits only the characteristic of toxicity
(or only the characteristic of EP toxicity), include only the mass of
constituents in the hazardous waste that are CERCLA hazardous substances
and not the mass of the entire hazardous waste.
--If the hazardous waste exhibits any other characteristic identified
under section 3001 (including any other characteristic plus the
characteristic of toxicity [or the characteristic of EP toxicity]),
include the mass of the entire hazardous waste.
Based on this mass, designated as C, assign a value for hazardous
constituent quantity as follows:
For the migration pathways, assign the source a
value for hazardous constituent quantity using the Tier A equation of
Table 2-5.
For the soil exposure and subsurface intrusion
pathway--soil exposure component, assign the area of observed
contamination a value using the Tier A equation of Table 5-2 (section
5.1.1.2.2).
For the soil exposure and subsurface intrusion
pathway--subsurface intrusion component, assign the area of observed
exposure a value using the Tier A equation of Table 5-19 (section
5.2.1.2.2).
If the hazardous constituent quantity for the source (or area of
observed contamination or area of observed exposure) is adequately
determined (that is, the total mass of all CERCLA hazardous substances
in the source and releases from the source [or in the area of observed
contamination or area of observed exposure] is known or is estimated
with reasonable confidence), do not evaluate the other three measures
discussed below. Instead assign these other three measures a value of 0
for the source (or area of observed contamination or area of observed
exposure) and proceed to section 2.4.2.1.5.
If the hazardous constituent quantity is not adequately determined,
assign the source (or area of observed contamination or area of observed
exposure) a value for hazardous constituent quantity based on the
available data and proceed to section 2.4.2.1.2.
Table 2-5--Hazardous Waste Quantity Evaluation Equations
----------------------------------------------------------------------------------------------------------------
Equation for assigning
Tier Measure Units value \a\
----------------------------------------------------------------------------------------------------------------
A........................... Hazardous constituent lb.......................... C.
quantity (C).
B \b\....................... Hazardous wastestream lb.......................... W/5,000.
quantity (W).
C \b\....................... Volume (V).............
Landfill............... yd\3\....................... V/2,500.
Surface impoundment.... yd\3\....................... V/2.5.
Surface impoundment yd\3\....................... V/2.5.
(buried/backfilled).
Drums \c\.............. gallon...................... V/500.
Tanks and containers yd\3\....................... V/2.5.
other than drums.
Contaminated soil...... yd\3\....................... V/2,500.
Pile................... yd\3\....................... V/2.5.
Other.................. yd\3\....................... V/2.5.
D \b\....................... Area (A)...............
Landfill............... ft\2\....................... A/3,400.
Surface impoundment.... ft\2\....................... A/13.
Surface impoundment ft\2\....................... A/13.
(buried/backfilled).
Land treatment......... ft\2\....................... A/270.
Pile \d\............... ft\2\....................... A/13.
Contaminated soil...... ft\2\....................... A/34,000.
----------------------------------------------------------------------------------------------------------------
\a\ Do not round to nearest integer.
\b\ Convert volume to mass when necessary: 1 ton = 2,000 pounds = 1 cubic yard = 4 drums = 200 gallons.
\c\ If actual volume of drums is unavailable, assume 1 drum=50 gallons.
\d\ Use land surface area under pile, not surface area of pile.
[[Page 128]]
2.4.2.1.2 Hazardous wastestream quantity. Evaluate hazardous
wastestream quantity for the source (or area of observed contamination
or area of observed exposure) based on the mass of hazardous
wastestreams plus the mass of any additional CERCLA pollutants and
contaminants (as defined in CERCLA section 101[33], as amended) that are
allocated to the source (or area of observed contamination or area of
observed exposure). For a wastestream that consists solely of a
hazardous waste listed pursuant to section 3001 of RCRA, as amended or
that consists solely of a RCRA hazardous waste that exhibits the
characteristics identified under section 3001 of RCRA, as amended,
include the mass of that entire hazardous waste in the evaluation of
this measure.
Based on this mass, designated as W, assign a value for hazardous
wastestream quantity as follows:
For the migration pathways, assign the source a
value for hazardous wastestream quantity using the Tier B equation of
Table 2-5.
For the soil exposure and subsurface intrusion
pathway--soil exposure component, assign the area of observed
contamination a value using the Tier B equation of Table 5-2 (section
5.1.1.2.2).
For the soil exposure and subsurface intrusion
pathway--subsurface intrusion component, assign the area of observed
exposure a value using the Tier B equation of Table 5-19 (section
5.2.1.2.2).
Do not evaluate the volume and area measures described below if the
source is the unallocated source or if the following condition applies:
The hazardous wastestream quantity for the source
(or area of observed contamination or area of observed exposure) is
adequately determined--that is, total mass of all hazardous wastestreams
and CERCLA pollutants and contaminants for the source and releases from
the source (or for the area of observed contamination) is known or is
estimated with reasonable confidence.
If the source is the unallocated source or if this condition
applies, assign the volume and area measures a value of 0 for the source
(or area of observed contamination) and proceed to section 2.4.2.1.5.
Otherwise, assign the source (or area of observed contamination) a value
for hazardous wastestream quantity based on the available data and
proceed to section 2.4.2.1.3.
2.4.2.1.3 Volume. Evaluate the volume measure using the volume of
the source (or the volume of the area of observed contamination, area of
observed exposure, or area of subsurface contamination). For the soil
exposure and subsurface intrusion pathway, restrict the use of the
volume measure to those areas of observed contamination, areas of
observed exposure, or areas of subsurface contamination as specified in
sections 5.1.1.2.2 and 5.2.1.2.2.
Based on the volume, designated as V, assign a value to the volume
measure as follows:
For the migration pathways, assign the source a
value for volume using the appropriate Tier C equation of Table 2-5.
For the soil exposure and subsurface intrusion
pathway--soil exposure component, assign the area of observed
contamination a value for volume using the appropriate Tier C equation
of Table 5-2 (section 5.1.1.2.2).
For the soil exposure and subsurface intrusion
pathway--subsurface intrusion component, assign the value based on the
volume of the regularly occupied structures within the area of observed
exposure or area of subsurface contamination using the Tier C equation
of Table 5-19 (section 5.2.1.2.2).
If the volume of the source (or volume of the area of observed
contamination, area of observed exposure, or area of subsurface
contamination, if applicable) can be determined, do not evaluate the
area measure. Instead, assign the area measure a value of 0 and proceed
to section 2.4.2.1.5. If the volume cannot be determined (or is not
applicable for the soil exposure and subsurface intrusion pathway),
assign the source (or area of observed contamination, area of observed
exposure, or area of subsurface contamination) a value of 0 for the
volume measure and proceed to section 2.4.2.1.4.
2.4.2.1.4 Area. Evaluate the area measure using the area of the
source (or the area of the area of observed contamination, area of
observed exposure, or area of subsurface contamination). Based on this
area, designated as A, assign a value to the area measure as follows:
For the migration pathways, assign the source a
value for area using the appropriate Tier D equation of Table 2-5.
For the soil exposure and subsurface intrusion
pathway--soil exposure component, assign the area of observed
contamination a value for area using the appropriate Tier D equation of
Table 5-2 (section 5.1.1.2.2).
For the soil exposure and subsurface intrusion
pathway--subsurface intrusion component, assign a value based on the
area of regularly occupied structures within the area of observed
exposure or area of subsurface contamination using the Tier D equation
of Table 5-19 (section 5.2.1.2.2).
2.4.2.1.5 Calculation of source hazardous waste quantity value.
Select the highest of the values assigned to the source (or areas of
observed contamination, areas of observed exposure, or areas of
subsurface contamination) for the hazardous constituent quantity,
hazardous wastestream quantity, volume, and area measures. Assign this
value as the source hazardous waste quantity value. Do not round to the
nearest integer.
[[Page 129]]
2.4.2.2 Calculation of hazardous waste quantity factor value. Sum
the source hazardous waste quantity values assigned to all sources
(including the unallocated source) or areas of observed contamination,
areas of observed exposure, or areas of subsurface contamination for the
pathway being evaluated and round this sum to the nearest integer,
except: If the sum is greater than 0, but less than 1, round it to 1.
Based on this value, select a hazardous waste quantity factor value for
the pathway from Table 2-6.
Table 2-6--Hazardous Waste Quantity Factor Values
------------------------------------------------------------------------
Hazardous waste quantity value Assigned value
------------------------------------------------------------------------
0....................................................... 0
1 \a\ to 100............................................ \b\ 1
Greater than 100 to 10,000.............................. 100
Greater than 10,000 to 1,000,000........................ 10,000
Greater than 1,000,000.................................. 1,000,000
------------------------------------------------------------------------
\a\ If the hazardous waste quantity value is greater than 0, but less
than 1, round it to 1 as specified in text.
\b\ For the pathway, if hazardous constituent quantity is not adequately
determined, assign a value as specified in the text; do not assign the
value of 1.
For a migration pathway, if the hazardous constituent quantity is
adequately determined (see section 2.4.2.1.1) for all sources (or all
portions of sources and releases remaining after a removal action),
assign the value from Table 2-6 as the hazardous waste quantity factor
value for the pathway. If the hazardous constituent quantity is not
adequately determined for one or more sources (or one or more portions
of sources or releases remaining after a removal action) assign a factor
value as follows:
If any target for that migration pathway is
subject to Level I or Level II concentrations (see section 2.5), assign
either the value from Table 2-6 or a value of 100, whichever is greater,
as the hazardous waste quantity factor value for that pathway.
If none of the targets for that pathway is
subject to Level I or Level II concentrations, assign a factor value as
follows:
--If there has been no removal action, assign either the value from
Table 2-6 or a value of 10, whichever is greater, as the hazardous waste
quantity factor value for that pathway.
--If there has been a removal action:
[squf] Determine values from Table 2-6 with and without
consideration of the removal action.
[squf] If the value that would be assigned from Table 2-6 without
consideration of the removal action would be 100 or greater, assign
either the value from Table 2-6 with consideration of the removal action
or a value of 100, whichever is greater, as the hazardous waste quantity
factor value for the pathway.
[squf] If the value that would be assigned from Table 2-6 without
consideration of the removal action would be less than 100, assign a
value of 10 as the hazardous waste quantity factor value for the
pathway.
For the soil exposure component of the soil exposure and subsurface
intrusion pathway, if the hazardous constituent quantity is adequately
determined for all areas of observed contamination, assign the value
from Table 2-6 as the hazardous waste quantity factor value. If the
hazardous constituent quantity is not adequately determined for one or
more areas of observed contamination, assign either the value from Table
2-6 or a value of 10, whichever is greater, as the hazardous waste
quantity factor value.
For the subsurface intrusion component of the soil exposure and
subsurface intrusion pathway, if the hazardous constituent quantity is
adequately determined for all areas of observed exposure, assign the
value from Table 2-6 as the hazardous waste quantity factor value. If
the hazardous constituent quantity is not adequately determined for one
or more areas of observed exposure, assign either the value from Table
2-6 or assign a factor value as follows:
If any target for the subsurface intrusion
component is subject to Level I or Level II concentrations (see section
2.5), assign either the value from Table 2-6 or a value of 100,
whichever is greater, as the hazardous waste quantity factor value for
this component.
If none of the targets for the subsurface
intrusion component is subject to Level I or Level II concentrations and
if there has been a removal or other temporary response action that does
not permanently interrupt target exposure form subsurface intrusion,
assign a factor value as follows:
--Determine the values from Table 2-6 with and without consideration of
the removal or other temporary response action.
--If the value that would be assigned from Table 2-6 without
consideration of the removal or other temporary response action would be
100 or greater, assign either the value from Table 2-6 with
consideration of the removal action or a value of 100, whichever is
greater, as the hazardous waste quantity factor value for the component.
--If the value that would be assigned from Table 2-6 without
consideration of the removal or other temporary response action would be
less than 100, assign a value of 10 as the hazardous waste quantity
factor value for the component.
Otherwise, if none of the targets for the
subsurface intrusion component is subject to Level I or Level II
concentrations and there has not been a removal action, assign a value
from Table 2-6 or a value of 10, whichever is greater.
[[Page 130]]
2.4.3 Waste characteristics factor category value. Determine the
waste characteristics factor category value as specified in section
2.4.3.1 for all pathways and threats, except the surface water-human
food chain threat and the surface water-environmental threat. Determine
the waste characteristics factor category value for these latter two
threats as specified in section 2.4.3.2.
2.4.3.1 Factor category value. For the pathway (component or threat)
being evaluated, multiply the toxicity or combined factor value, as
appropriate, from section 2.4.1.2 and the hazardous waste quantity
factor value from section 2.4.2.2, subject to a maximum product of
1x10\8\. Based on this waste characteristics product, assign a waste
characteristics factor category value to the pathway (component or
threat) from Table 2-7.
Table 2-7--Waste Characteristics Factor Category Values
------------------------------------------------------------------------
Waste characteristics product Assigned value
------------------------------------------------------------------------
0....................................................... 0
Greater than 0 to less than 10.......................... 1
10 to less than 1x10\2\................................. 2
1x10\2\ to less than 1x10\3\............................ 3
1x10\3\ to less than 1x10\4\............................ 6
1x10\4\ to less than 1x10\5\............................ 10
1x10\5\ to less than 1x10\6\............................ 18
1x10\6\ to less than 1x10\7\............................ 32
1x10\7\ to less than 1x10\8\............................ 56
1x10\8\ to less than 1x10\9\............................ 100
1x10\9\ to less than 1x10\10\........................... 180
1x10\10\ to less than 1x10\11\.......................... 320
1x10\11\ to less than 1x10\12\.......................... 560
1x10\12\................................................ 1,000
------------------------------------------------------------------------
2.4.3.2 Factor category value, considering bioaccumulation
potential. For the surface water-human food chain threat and the surface
water-environmental threat, multiply the toxicity or combined factor
value, as appropriate, from section 2.4.1.2 and the hazardous waste
quantity factor value from section 2.4.2.2, subject to:
A maximum product of 1x10\12\, and
A maximum product exclusive of the
bioaccumulation (or ecosystem bioaccumulation) potential factor of
1x10\8\.
Based on the total waste characteristics product, assign a waste
characteristics factor category value to these threats from Table 2-7.
2.5 Targets. The types of targets evaluated include the following:
Individual (factor name varies by pathway,
component, and threat).
Human population.
Resources (these vary by pathway, component, and
threat).
Sensitive environments (included for the surface
water migration pathway, air migration pathway, and soil exposure
component of the soil exposure and subsurface intrusion pathway).
The factor values that may be assigned to each type of target have
the same range for each pathway for which that type of target is
evaluated. The factor value for most types of targets depends on whether
the target is subject to actual or potential contamination for the
pathway and whether the actual contamination is Level I or Level II:
Actual contamination: Target is associated either
with a sampling location that meets the criteria for an observed release
(or observed contamination or observed exposure) for the pathway or with
an observed release based on direct observation for the pathway
(additional criteria apply for establishing actual contamination for the
human food chain threat in the surface water migration pathway, see
sections 4.1.3.3 and 4.2.3.3). Sections 3 through 6 specify how to
determine the targets associated with a sampling location or with an
observed release based on direct observation. Determine whether the
actual contamination is Level I or Level II as follows:
--Level I:
[squf] Media-specific concentrations for the target meet the
criteria for an observed release (or observed contamination or observed
exposure) for the pathway and are at or above media-specific benchmark
values. These benchmark values (see section 2.5.2) include both
screening concentrations and concentrations specified in regulatory
limits (such as Maximum Contaminant Level (MCL) values), or
[squf] For the human food chain threat in the surface water
migration pathway, concentrations in tissue samples from aquatic human
food chain organisms are at or above benchmark values. Such tissue
samples may be used in addition to media-specific concentrations only as
specified in sections 4.1.3.3 and 4.2.3.3.
--Level II:
[squf] Media-specific concentrations for the target meet the
criteria for an observed release (or observed contamination or observed
exposure) for the pathway, but are less than media-specific benchmarks.
If none of the hazardous substances eligible to be evaluated for the
sampling location has an applicable benchmark, assign Level II to the
actual contamination at the sampling location, or
[squf] For observed releases or observed exposures based on direct
observation, assign Level II to targets as specified in sections 3, 4,
5, and 6, or
[squf] For the human food chain threat in the surface water
migration pathway, concentrations in tissue samples from aquatic human
food chain organisms, when applicable, are below benchmark values.
--If a target is subject to both Level I and Level II concentrations for
a pathway
[[Page 131]]
(component or threat), evaluate the target using Level I
concentrations for that pathway (component or threat).
Potential contamination: Target is subject to a
potential release (that is, target is not associated with actual
contamination for that pathway or threat).
Assign a factor value for individual risk as follows (select the
highest value that applies to the pathway, component or threat):
50 points if any individual is exposed to Level I
concentrations.
45 points if any individual is exposed to Level
II concentrations.
Maximum of 20 points if any individual is subject
to potential contamination. The value assigned is 20 unless reduced by a
distance or dilution weight appropriate to the pathway. Assign factor
values for population and sensitive environments as follows:
Sum Level I targets and multiply by 10. (Level I
is not used for sensitive environments in the soil exposure component of
the soil exposure and subsurface intrusion and air migration pathways.)
Sum Level II targets.
Multiply potential targets in all but the soil
exposure and subsurface intrusion pathway by distance or dilution
weights appropriate to the pathway, sum, and divide by 10. Distance or
dilution weighting accounts for diminishing exposure with increasing
distance or dilution within the different pathways. For targets within
an area of subsurface contamination in the subsurface intrusion
component of the soil exposure and subsurface intrusion pathway,
multiply by a weighting factor as directed in section 5.2.1.3.2.3.
Sum the values for the three levels.
In addition, resource value points are assigned within all pathways
for welfare-related impacts (for example, impacts to agricultural land),
but do not depend on whether there is actual or potential contamination.
2.5.1 Determination of level of actual contamination at a sampling
location. Determine whether Level I concentrations or Level II
concentrations apply at a sampling location (and thus to the associated
targets) as follows:
Select the benchmarks applicable to the pathway
(component or threat) being evaluated.
Compare the concentrations of hazardous
substances in the sample (or comparable samples) to their benchmark
concentrations for the pathway (component or threat), as specified in
section 2.5.2.
Determine which level applies based on this
comparison.
If none of the hazardous substances eligible to
be evaluated for the sampling location has an applicable benchmark,
assign Level II to the actual contamination at that sampling location
for the pathway (component or threat).
In making the comparison, consider only those samples, and only
those hazardous substances in the sample, that meet the criteria for an
observed release (or observed contamination or observed exposure) for
the pathway, except: Tissue samples from aquatic human food chain
organisms may also be used as specified in sections 4.1.3.3 and 4.2.3.3
of the surface water-human food chain threat. If any hazardous substance
is present in more than one comparable sample for the sampling location,
use the highest concentration of that hazardous substance from any of
the comparable samples in making the comparisons.
Treat sets of samples that are not comparable separately and make a
separate comparison for each such set.
2.5.2 Comparison to benchmarks. Use the following media-specific
benchmarks for making the comparisons for the indicated pathway (or
threat):
Maximum Contaminant Level Goals (MCLGs)--ground
water migration pathway and drinking water threat in surface water
migration pathway. Use only MCLG values greater than 0.
Maximum Contaminant Levels (MCLs)--ground water
migration pathway and drinking water threat in surface water migration
pathway.
Food and Drug Administration Action Level (FDAAL)
for fish or shellfish--human food chain threat in surface water
migration pathway.
EPA Ambient Water Quality Criteria (AWQC/National
Recommended Water Quality Criteria) for protection of aquatic life--
environmental threat in surface water migration pathway.
EPA Ambient Aquatic Life Advisory Concentrations
(AALAC)--environmental threat in surface water migration pathway.
National Ambient Air Quality Standards (NAAQS)--
air migration pathway.
National Emission Standards for Hazardous Air
Pollutants (NESHAPs)--air migration pathway. Use only those NESHAPs
promulgated in ambient concentration units.
Screening concentration for cancer corresponding
to that concentration that corresponds to the 10-6 individual
cancer risk for inhalation exposures (air migration pathway or
subsurface intrusion component of the soil exposure and subsurface
intrusion pathway) or for oral exposures (ground water migration
pathway; drinking water and human food chain threats in surface water
migration pathway; and soil exposure and subsurface intrusion pathway).
Screening concentration for noncancer
toxicological responses corresponding to the RfC for inhalation
exposures (air migration pathway and subsurface intrusion component of
the soil exposure and subsurface intrusion pathway) or RfD for oral
exposures (ground water migration pathway; drinking
[[Page 132]]
water and human food chain threats in surface water migration pathway;
and soil exposure and subsurface intrusion pathway).
Select the benchmark(s) applicable to the pathway (component or
threat) being evaluated as specified in sections 3 through 6. Compare
the concentration of each hazardous substance from the sampling location
to its benchmark concentration(s) for that pathway (component or
threat). Use only those samples and only those hazardous substances in
the sample that meet the criteria for an observed release (or observed
contamination or observed exposure) for the pathway, except: Tissue
samples from aquatic human food chain organisms may be used as specified
in sections 4.1.3.3 and 4.2.3.3. If the concentration of any applicable
hazardous substance from any sample equals or exceeds its benchmark
concentration, consider the sampling location to be subject to Level I
concentrations for that pathway (or threat). If more than one benchmark
applies to the hazardous substance, assign Level I if the concentration
of the hazardous substance equals or exceeds the lowest applicable
benchmark concentration.
If no hazardous substance individually equals or exceeds its
benchmark concentration, but more than one hazardous substance either
meets the criteria for an observed release (or observed contamination or
observed exposure) for the sample (or comparable samples) or is eligible
to be evaluated for a tissue sample (see sections 4.1.3.3 and 4.2.3.3),
calculate the indices I and J specified below based on these hazardous
substances.
For those hazardous substances that are carcinogens (that is, those
having either a carcinogen weight-of-evidence classification of A, B, or
C or a weight-of-evidence classification of carcinogenic to humans,
likely to be carcinogenic to humans, or suggestive evidence of
carcinogenic potential), calculate an index I for the sample location as
follows:
[GRAPHIC] [TIFF OMITTED] TR09JA17.064
Where:
Ci = Concentration of hazardous substance i in sample (or
highest concentration of hazardous substance i from among
comparable samples).
SCi = Screening concentration for cancer corresponding to
that concentration that corresponds to its 10-6
individual cancer risk for applicable exposure (inhalation or
oral) for hazardous substance i.
n = Number of applicable hazardous substances in sample (or comparable
samples) that are carcinogens and for which an SCi
is available.
For those hazardous substances for which an RfD or RfC is available,
calculate an index J for the sample location as follows:
[GRAPHIC] [TIFF OMITTED] TR09JA17.065
Where:
Cj = Concentration of hazardous substance j in sample (or
highest concentration of hazardous substance j from among
comparable samples).
CRj = Screening concentration for noncancer toxicological
responses corresponding to RfD or RfC for applicable exposure
(inhalation or oral) for hazardous substance j.
m = Number of applicable hazardous substances in sample (or comparable
samples) for which a CRj is available.
If either I or J equals or exceeds 1, consider the sampling location
to be subject to Level I concentrations for that pathway (component or
threat). If both I and J are less than 1, consider the sampling location
to be subject to Level II concentrations for that pathway (component or
threat). If, for the sampling location, there are sets of samples that
are not comparable, calculate I and J separately for each such set, and
use the highest calculated values of I and J to assign Level I and Level
II.
See sections 7.3.1 and 7.3.2 for criteria for determining the level
of contamination for radioactive substances.
[[Page 133]]
3.0 Ground Water Migration Pathway
Evaluate the ground water migration pathway based on three factor
categories: likelihood of release, waste characteristics, and targets.
Figure 3-1 indicates the factors included within each factor category.
Determine the ground water migration pathway score (Sgw)
in terms of the factor category values as follows:
[GRAPHIC] [TIFF OMITTED] TC15NO91.145
where:
LR = Likelihood of release factor category value.
WC = Waste characteristics factor category value.
T = Targets factor category value.
SF = Scaling factor.
Table 3-1 outlines the specific calculation procedure.
Calculate a separate ground water migration pathway score for each
aquifer, using the factor category values for that aquifer for
likelihood of release, waste characteristics, and targets. In doing so,
include both the targets using water from that aquifer and the targets
using water from all overlying aquifers through which the hazardous
substances would migrate to reach the aquifer being evaluated. Assign
the highest ground water migration pathway score that results for any
aquifer as the ground water migration pathway score for the site.
[[Page 134]]
[GRAPHIC] [TIFF OMITTED] TC02AU92.005
[[Page 135]]
Table 3-1--Ground Water Migration Pathway Scoresheet
------------------------------------------------------------------------
Factor categories and factors Maximum value Value assigned
------------------------------------------------------------------------
Likelihood of Release to an Aquifer:
1. Observed Release.................. 550 ___
2. Potential to Release:
2a. Containment................. 10 ___
2b. Net Precipitation........... 10 ___
2c. Depth to Aquifer............ 5 ___
2d. Travel Time................. 35 ___
2e. Potential to Release [lines 500 ___
2a(2b + 2c + 2d)]..............
3. Likelihood of Release (higher of 550 ___
lines 1 and 2e)......................
Waste Characteristics:
4. Toxicity/Mobility................. (a) ___
5. Hazardous Waste Quantity.......... (a) ___
6. Waste Characteristics............. 100 ___
Targets:
7. Nearest Well...................... 50 ___
8. Population:
8a. Level I Concentrations...... (b) ___
8b. Level II Concentrations..... (b) ___
8c. Potential Contamination..... (b) ___
8d. Population (lines 8a + 8b + (b) ___
8c)............................
9. Resources......................... 5 ___
10. Wellhead Protection Area.......... 20 ___
11. Targets (lines 7 + 8d + 9 + 10)... (b) ___
Ground Water Migration Score for an
Aquifer:
12. Aquifer Score [(lines 3 x 6 x 11) / 100 ___
82,500] \c\.........................
Ground Water Migration Pathway Score:
13. Pathway Score (Sgw), (highest 100 ___
value from line 12 for all aquifers
evaluated) \c\.......................
------------------------------------------------------------------------
\a\ Maximum value applies to waste characteristics category.
\b\ Maximum value not applicable.
\c\ Do not round to nearest integer.
3.0.1 General considerations
3.0.1.1 Ground water target distance limit. The target distance
limit defines the maximum distance from the sources at the site over
which targets are evaluated. Use a target distance limit of 4 miles for
the ground water migration pathway, except when aquifer discontinuities
apply (see section 3.0.1.2.2). Furthermore, consider any well with an
observed release from a source at the site (see section 3.1.1) to lie
within the target distance limit of the site, regardless of the well's
distance from the sources at the site.
For sites that consist solely of a contaminated ground water plume
with no identified source, begin measuring the 4-mile target distance
limit at the center of the area of observed ground water contamination.
Determine the area of observed ground water contamination based on
available samples that meet the criteria for an observed release.
3.0.1.2 Aquifer boundaries. Combine multiple aquifers into a single
hydrologic unit for scoring purposes if aquifer interconnections can be
established for these aquifers. In contrast, restrict aquifer boundaries
if aquifer discontinuities can be established.
3.0.1.2.1 Aquifer interconnections. Evaluate whether aquifer
interconnections occur within 2 miles of the sources at the site. If
they occur within this 2-mile distance, combine the aquifers having
interconnections in scoring the site. In addition, if observed ground
water contamination attributable to the sources at the site extends
beyond 2 miles from the sources, use any locations within the limits of
this observed ground water contamination in evaluating aquifer
interconnections. If data are not adequate to establish aquifer
interconnections, evaluate the aquifers as separate aquifers.
3.0.1.2.2 Aquifer discontinuities. Evaluate whether aquifer
discontinuities occur within the 4-mile target distance limit. An
aquifer discontinuity occurs for scoring purposes only when a geologic,
topographic, or other structure or feature entirely transects an aquifer
within the 4-mile target distance limit, thereby creating a continuous
boundary to ground water flow within this limit. If two or more aquifers
can be combined into a single hydrologic unit for scoring purposes, an
aquifer discontinuity occurs only when the structure or feature entirely
transects the boundaries of this single hydrologic unit.
When an aquifer discontinuity is established within the 4-mile
target distance limit, exclude that portion of the aquifer beyond the
discontinuity in evaluating the ground water migration pathway. However,
if hazardous substances have migrated across an apparent discontinuity
within the 4-mile target distance limit, do not consider this to be a
discontinuity in scoring the site.
3.0.1.3 Karst aquifer. Give a karst aquifer that underlies any
portion of the sources at
[[Page 136]]
the site special consideration in the evaluation of two potential to
release factors (depth to aquifer in section 3.1.2.3 and travel time in
section 3.1.2.4), one waste characteristics factor (mobility in section
3.2.1.2), and two targets factors (nearest well in section 3.3.1 and
potential contamination in section 3.3.2.4).
3.1 Likelihood of release. For an aquifer, evaluate the likelihood
of release factor category in terms of an observed release factor or a
potential to release factor.
3.1.1 Observed release. Establish an observed release to an aquifer
by demonstrating that the site has released a hazardous substance to the
aquifer. Base this demonstration on either:
Direct observation--a material that contains one
or more hazardous substances has been deposited into or has been
observed entering the aquifer.
Chemical analysis--an analysis of ground water
samples from the aquifer indicates that the concentration of hazardous
substance(s) has increased significantly above the background
concentration for the site (see section 2.3). Some portion of the
significant increase must be attributable to the site to establish the
observed release, except: when the source itself consists of a ground
water plume with no identified source, no separate attribution is
required.
If an observed release can be established for the aquifer, assign
the aquifer an observed release factor value of 550, enter this value in
table 3-1, and proceed to section 3.1.3. If an observed release cannot
be established for the aquifer, assign an observed release factor value
of 0, enter this value in table 3-1, and proceed to section 3.1.2.
3.1.2 Potential to release. Evaluate potential to release only if an
observed release cannot be established for the aquifer. Evaluate
potential to release based on four factors: containment, net
precipitation, depth to aquifer, and travel time. For sources overlying
karst terrain, give any karst aquifer that underlies any portion of the
sources at the site special consideration in evaluating depth to aquifer
and travel time, as specified in sections 3.1.2.3 and 3.1.2.4.
3.1.2.1 Containment. Assign a containment factor value from table 3-
2 to each source at the site. Select the highest containment factor
value assigned to those sources with a source hazardous waste quantity
value of 0.5 or more (see section 2.4.2.1.5). (Do not include this
minimum size requirement in evaluating any other factor of this
pathway.) Assign this highest value as the containment factor value for
the aquifer being evaluated. Enter this value in Table 3-1.
If no source at the site meets the minimum size requirement, then
select the highest value assigned to the sources at the site and assign
it as the containment factor value for the aquifer being evaluated.
Enter this value in table 3-1.
3.1.2.2 Net precipitation. Assign a net precipitation factor value
to the site. Figure 3-2 provides computed net precipitation factor
values, based on site location. Where necessary, determine the net
precipitation factor value as follows:
Determine monthly precipitation and monthly
evapotranspiration:
-Use local measured monthly averages.
-When local data are not available, use monthly averages from the
nearest National Oceanographic and Atmospheric Administration weather
station that is in a similar geographic setting.
Table 3-2--Containment Factor Values for Ground Water Migration Pathway
------------------------------------------------------------------------
Source Assigned value
------------------------------------------------------------------------
All Sources (Except Surface Impoundments,
Land Treatment, Containers, and Tanks)
Evidence of hazardous substance migration 10
from source area (i.e., source area
includes source and any associated
containment structures).
No liner.................................. 10
No evidence of hazardous substance
migration from source area, a liner, and:
(a) None of the following present: (1) 10
maintained engineered cover, or (2)
functioning and maintained run-on
control system and runoff management
system, or (3) functioning leachate
collection and removal system
immediately above liner.
(b) Any one of the three items in (a) 9
present.
(c) Any two of the items in (a) present. 7
(d) All three items in (a) present plus 5
a functioning ground water monitoring
system.
(e) All items in (d) present, plus no 3
bulk or non-containerized liquids nor
materials containing free liquids
deposited in source area.
No evidence of hazardous substance
migration from source area, double liner
with functioning leachate collection and
removal system above and between liners,
functioning ground water monitoring
system, and:
(f) Only one of the following 3
deficiencies present in containment:
(1) bulk or noncontainerized liquids or
materials containing free liquids
deposited in source area, or (2) no or
nonfunctioning or nonmaintained run-on
control system and runoff management
system, or (3) no or nonmaintained
engineered cover.
(g) None of the deficiencies in (f) 0
present.
Source area inside or under maintained 0
intact structure that provides protection
from precipitation so that neither runoff
nor leachate is generated, liquids or
materials containing free liquids not
deposited in source area, and functioning
and maintained run-on control present.
[[Page 137]]
Surface Impoundment
Evidence of hazardous substance migration 10
from surface impoundment.
No liner.................................. 10
Free liquids present with either no 10
diking, unsound diking, or diking that is
not regularly inspected and maintained.
No evidence of hazardous substance
migration from surface impoundment, free
liquids present, sound diking that is
regularly inspected and maintained,
adequate freeboard, and:
(a) Liner............................... 9
(b) Liner with functioning leachate 5
collection and removal system below
liner, and functioning ground water
monitoring system.
(c) Double liner with functioning 3
leachate collection and removal system
between liners, and functioning ground
water monitoring system.
No evidence of hazardous substance Evaluate using All sources
migration from surface impoundment and criteria (with no bulk or
all free liquids eliminated at closure free liquid deposited).
(either by removal of liquids or
solidification of remaining wastes and
waste residues).
Land Treatment
Evidence of hazardous substance migration 10
from land treatment zone.
No functioning, maintained, run-on control 10
and runoff management system.
No evidence of hazardous substance
migration from land treatment zone and:
(a) Functioning and maintained run-on 7
control and runoff management system.
(b) Functioning and maintained run-on 5
control and runoff management system,
and vegetative cover established over
entire land treatment area.
(c) Land treatment area maintained in 0
compliance with 40 CFR 264.280.
Containers
All containers buried..................... Evaluate using All sources
criteria.
Evidence of hazardous substance migration 10
from container area (i.e., container area
includes containers and any associated
containment structures).
No liner (or no essentially impervious 10
base) under container area..
No diking (or no similar structure) 10
surrounding container area.
Diking surrounding container area unsound 10
or not regularly inspected and maintained.
No evidence of hazardous substance
migration from container area, container
area surrounded by sound diking that is
regularly inspected and maintained, and:
(a) Liner (or essentially impervious 9
base) under container area.
(b) Essentially impervious base under 7
container area with liquids collection
and removal system.
(c) Containment system includes 5
essentially impervious base, liquids
collection system, sufficient capacity
to contain 10 percent of volume of all
containers, and functioning and
maintained run-on control; plus
functioning ground water monitoring
system, and spilled or leaked hazardous
substances and accumulated
precipitation removed in timely manner
to prevent overflow of collection
system, at least weekly inspection of
containers, hazardous substances in
leaking or deteriorating containers
transferred to containers in good
condition, and containers sealed except
when waste is added or removed.
(d) Free liquids present, containment 5
system has sufficient capacity to hold
total volume of all containers and to
provide adequate freeboard, single
liner under container area with
functioning leachate collection and
removal system below liner, and
functioning ground water monitoring
system.
(e) Same as (d) except: double liner 3
under container area with functioning
leachate collection and removal system
between liners.
Containers inside or under maintained 0
intact structure that provides protection
from precipitation so that neither runoff
nor leachate would be generated from any
unsealed or ruptured containers, liquids
or materials containing free liquids not
deposited in any container, and
functioning and maintained run-off
control present.
No evidence of hazardous substance Evaluate using All sources
migration from container area, containers criteria (with no bulk or
leaking, and all free liquids eliminated free liquid deposited).
at closure (either by removal of liquid
or solidification of remaining wastes and
waste residues).
Tank
Below-ground tank......................... Evaluate using All sources
criteria.
Evidence of hazardous substance migration 10
from tank area (i.e., tank area includes
tank, ancillary equipment such as piping,
and any associated containment
structures).
Tank and ancillary equipment not provided 10
with secondary containment (e.g., liner
under tank area, vault system, double
wall).
No diking (or no similar structure) 10
surrounding tank and ancillary equipment.
Diking surrounding tank and ancillary 10
equipment unsound or not regularly
inspected and maintained.
[[Page 138]]
No evidence of hazardous substance
migration from tank area, tank and
ancillary equipment surrounded by sound
diking that is regularly inspected and
maintained, and:
(a) Tank and ancillary equipment 9
provided with secondary containment.
(b) Tank and ancillary equipment 7
provided with secondary containment
with leak detection and collection
system.
(c) Tank and ancillary equipment 5
provided with secondary containment
system that detects and collects
spilled or leaked hazardous substances
and accumulated precipitation and has
sufficient capacity to contain 110
percent of volume of largest tank
within containment area, spilled or
leaked hazardous substances and
accumulated precipitation removed in
timely manner, at least weekly
inspection of tank and secondary
containment system, all leaking or
unfit-for-use tank systems promptly
responded to, and functioning ground
water monitoring system.
(d) Containment system has sufficient 5
capacity to hold volume of all tanks
within tank containment area and to
provide adequate freeboard, single
liner under that containment area with
functioning leachate collection and
removal system below liner, and
functioning ground water monitoring
system.
(e) Same as (d) except: double liner 3
under tank containment area with
functioning leachate collection and
removal system between liners.
Tank is above ground, and inside or under 0
maintained intact structure that provides
protection from precipitation so that
neither runoff nor leachate would be
generated from any material released from
tank, liquids or materials containing
free liquids not deposited in any tank,
and functioning and maintained run-on
control present.
------------------------------------------------------------------------
[[Page 139]]
[GRAPHIC] [TIFF OMITTED] TC02AU92.006
[[Page 140]]
[GRAPHIC] [TIFF OMITTED] TC02AU92.007
-When measured monthly evapotranspiration is not available, calculate
monthly potential evapotranspiration (Ei) as follows:
Ei = 0.6 Fi (10 Ti/I) \a\
where:
Ei = Monthly potential evapotranspiration (inches) for
month i.
Fi = Monthly latitude adjusting value for month i.
Ti = Mean monthly temperature ([deg]C) for month i.
[[Page 141]]
[GRAPHIC] [TIFF OMITTED] TC15NO91.146
a = 6.75 x 10-7 I\3\-7.71 x 10-5 I\2\ +
1.79 x 10-2 I + 0.49239
Select the latitude adjusting value for each month from table 3-3.
For latitudes lower than 50[deg] North or 20[deg] South, determine the
monthly latitude adjusting value by interpolation.
Calculate monthly net precipitation by
subtracting monthly evapotranspiration (or monthly potential
evapotranspiration) from monthly precipitation. If evapotranspiration
(or potential evapotranspiration) exceeds precipitation for a month,
assign that month a net precipitation value of 0.
Calculate the annual net precipitation by summing
the monthly net precipitation values.
Based on the annual net precipitation, assign a
net precipitation factor value from table 3-4.
Enter the value assigned from Figure 3-2 or from table 3-4, as
appropriate, in table 3-1.
Table 3-3--Monthly Latitude Adjusting Values \a\
----------------------------------------------------------------------------------------------------------------
Latitude Month
\b\ -----------------------------------------------------------------------------------------------------
(degrees) Jan. Feb. March April May June July August Sept. Oct. Nov. Dec.
----------------------------------------------------------------------------------------------------------------
=50 N
45 N 0.80 0.81 1.02 1.13 1.28 1.29 1.31 1.21 1.04 0.94 0.79 0.75
40 N 0.84 0.83 1.03 1.11 1.24 1.25 1.27 1.18 1.04 0.96 0.83 0.81
35 N 0.87 0.85 1.03 1.09 1.21 1.21 1.23 1.16 1.03 0.97 0.89 0.85
30 N 0.90 0.87 1.03 1.08 1.18 1.17 1.20 1.14 1.03 0.98 0.89 0.88
20 N 0.95 0.90 1.03 1.05 1.13 1.11 1.14 1.11 1.02 1.00 0.93 0.94
10 N 1.00 0.91 1.03 1.03 1.08 1.06 1.08 1.07 1.02 1.02 0.98 0.99
0 1.04 0.94 1.04 1.01 1.04 1.01 1.04 1.04 1.01 1.04 1.01 1.04
10 S 1.08 0.97 1.05 0.99 1.00 0.96 1.00 1.02 1.00 1.06 1.05 1.09
20 S 1.14 0.99 1.05 0.97 0.96 0.91 0.95 0.99 1.00 1.08 1.09 1.15
----------------------------------------------------------------------------------------------------------------
\a\ Do not round to nearest integer.
\b\ For unlisted latitudes lower than 50[deg] North or 20[deg] South, determine the latitude adjusting value by
interpolation.
Table 3-4--Net Precipitation Factor Values
------------------------------------------------------------------------
Assigned
Net precipitation (inches) value
------------------------------------------------------------------------
0........................................................... 0
Greater than 0 to 5......................................... 1
Greater than 5 to 15........................................ 3
Greater than 15 to 30....................................... 6
Greater than 30............................................. 10
------------------------------------------------------------------------
3.1.2.3 Depth to aquifer. Evaluate depth to aquifer by determining
the depth from the lowest known point of hazardous substances at a site
to the top of the aquifer being evaluated, considering all layers in
that interval. Measure the depth to an aquifer as the distance from the
surface to the top of the aquifer minus the distance from the surface to
the lowest known point of hazardous substances eligible to be evaluated
for that aquifer. In evaluating depth to aquifer in karst terrain,
assign a thickness of 0 feet to a karst aquifer that underlies any
portion of the sources at the site. Based on the calculated depth,
assign a value from table 3-5 to the depth to aquifer factor.
Determine the depth to aquifer only at locations within 2 miles of
the sources at the site, except: if observed ground water contamination
attributable to sources at the site extends more than 2 miles beyond
these sources, use any location within the limits of this observed
ground water contamination when evaluating the depth to aquifer factor
for any aquifer that does not have an observed release. If the necessary
geologic information is available at multiple locations, calculate the
depth to aquifer at each location. Use the location having the smallest
depth to assign the factor value. Enter this value in table 3-1.
Table 3-5--Depth to Aquifer Factor Values
------------------------------------------------------------------------
Assigned
Depth to aquifer \a\ (feet) value
------------------------------------------------------------------------
Less than or equal to 25.................................... 5
Greater than 25 to 250...................................... 3
Greater than 250............................................ 1
------------------------------------------------------------------------
\a\ Use depth of all layers between the hazardous substances and
aquifer. Assign a thickness of 0 feet to any karst aquifer that
underlies any portion of the sources at the site.
3.1.2.4 Travel time. Evaluate the travel time factor based on the
geologic materials in the interval between the lowest known point of
hazardous substances at the site and the top of the aquifer being
evaluated. Assign a value to the travel time factor as follows:
If the depth to aquifer (see section 3.1.2.3) is
10 feet or less, assign a value of 35.
If, for the interval being evaluated, all layers
that underlie a portion of the sources at the site are karst, assign a
value of 35.
Otherwise:
-Select the lowest hydraulic conductivity layer(s) from within the above
interval.
[[Page 142]]
Consider only layers at least 3 feet thick. However, do not consider
layers or portions of layers within the first 10 feet of the depth to
the aquifer.
-Determine hydraulic conductivities for individual layers from table 3-6
or from in-situ or laboratory tests. Use representative, measured,
hydraulic conductivity values whenever available.
-If more than one layer has the same lowest hydraulic conductivity,
include all such layers and sum their thicknesses. Assign a thickness of
0 feet to a karst layer that underlies any portion of the sources at the
site.
-Assign a value from table 3-7 to the travel time factor, based on the
thickness and hydraulic conductivity of the lowest hydraulic
conductivity layer(s).
Table 3-6--Hydraulic Conductivity of Geologic Materials
------------------------------------------------------------------------
Assigned
hydraulic
Type of material conductivity \a\
(cm/sec)
------------------------------------------------------------------------
Clay; low permeability till (compact unfractured 10-8
till); shale; unfractured metamorphic and igneous
rocks................................................
Silt; loesses; silty clays; sediments that are 10-6
predominantly silts; moderately permeable till (fine-
grained, unconsolidated till, or compact till with
some fractures); low permeability limestones and
dolomites (no karst); low permeability sandstone; low
permeability fractured igneous and metamorphic rocks.
Sands; sandy silts; sediments that are predominantly 10-4
sand; highly permeable till (coarse-grained,
unconsolidated or compact and highly fractured);
peat; moderately permeable limestones and dolomites
(no karst); moderately permeable sandstone;
moderately permeable fractured igneous and
metamorphic rocks....................................
Gravel; clean sand; highly permeable fractured igneous 10-2
and metamorphic rocks; permeable basalt; karst
limestones and dolomites.............................
------------------------------------------------------------------------
\a\ Do not round to nearest integer.
Table 3-7--Travel Time Factor Values \a\
------------------------------------------------------------------------
Thickness of lowest hydraulic conductivity
layer(s) \b\ (feet)
Hydraulic conductivity (cm/ -------------------------------------------
sec) Greater Greater Greater
than 3 to than 5 to than 100 Greater
5 100 to 500 than 500
------------------------------------------------------------------------
Greater than or equal to 10- 35 35 35 25
3..........................
Less than 10-3 to 10-5...... 35 25 15 15
Less than 10-5 to 10-7...... 15 15 5 5
Less than 10-7.............. 5 5 1 1
------------------------------------------------------------------------
\a\ If depth to aquifer is 10 feet or less or if, for the interval being
evaluated, all layers that underlie a portion of the sources at the
site are karst, assign a value of 35.
\b\ Consider only layers at least 3 feet thick. Do not consider layers
or portions of layers within the first 10 feet of the depth to the
aquifer.
Determine travel time only at locations within 2 miles of the
sources at the site, except: if observed ground water contamination
attributable to sources at the site extends more than 2 miles beyond
these sources, use any location within the limits of this observed
ground water contamination when evaluating the travel time factor for
any aquifer that does not have an observed release. If the necessary
subsurface geologic information is available at multiple locations,
evaluate the travel time factor at each location. Use the location
having the highest travel time factor value to assign the factor value
for the aquifer. Enter this value in table 3-1.
3.1.2.5 Calculation of potential to release factor value. Sum the
factor values for net precipitation, depth to aquifer, and travel time,
and multiply this sum by the factor value for containment. Assign this
product as the potential to release factor value for the aquifer. Enter
this value in table 3-1.
3.1.3 Calculation of likelihood of release factor category value. If
an observed release is established for an aquifer, assign the observed
release factor value of 550 as the likelihood of release factor category
value for that aquifer. Otherwise, assign the potential to release
factor value for that aquifer as the likelihood of release value. Enter
the value assigned in table 3-1.
3.2 Waste characteristics. Evaluate the waste characteristics factor
category for an aquifer based on two factors: toxicity/mobility and
hazardous waste quantity. Evaluate only those hazardous substances
available to migrate from the sources at the site to ground water. Such
hazardous substances include:
Hazardous substances that meet the criteria for
an observed release to ground water.
All hazardous substances associated with a source
that has a ground water containment factor value greater than 0 (see
sections 2.2.2, 2.2.3, and 3.1.2.1).
[[Page 143]]
3.2.1 Toxicity/mobility. For each hazardous substance, assign a
toxicity factor value, a mobility factor value, and a combined toxicity/
mobility factor value as specified in the following sections. Select the
toxicity/mobility factor value for the aquifer being evaluated as
specified in section 3.2.1.3.
3.2.1.1 Toxicity. Assign a toxicity factor value to each hazardous
substance as specified in Section 2.4.1.1.
3.2.1.2 Mobility. Assign a mobility factor value to each hazardous
substance for the aquifer being evaluated as follows:
For any hazardous substance that meets the
criteria for an observed release by chemical analysis to one or more
aquifers underlying the sources at the site, regardless of the aquifer
being evaluated, assign a mobility factor value of 1.
For any hazardous substance that does not meet
the criteria for an observed release by chemical analysis to at least
one of the aquifers, assign that hazardous substance a mobility factor
value from table 3-8 for the aquifer being evaluated, based on its water
solubility and distribution coefficient (Kd).
If the hazardous substance cannot be assigned a
mobility factor value because data on its water solubility or
distribution coefficient are not available, use other hazardous
substances for which information is available in evaluating the pathway.
Table 3-8--Ground Water Mobility Factor Values \a\
----------------------------------------------------------------------------------------------------------------
Distribution coefficient (Kd) (ml/g)
------------------------------------------------------
Water solubility (mg/l) 10
Karst \c\ <=10 to 1,000 1,000
----------------------------------------------------------------------------------------------------------------
Present as liquid \b\.................................... 1 1 0.01 0.0001
Greater than 100......................................... 1 1 0.01 0.0001
Greater than 1 to 100.................................... 0.2 0.2 0.002 2 x 10-5
Greater than 0.01 to 1................................... 0.002 0.002 2 x 10-5 2 x 10-7
Less than or equal to 0.01............................... 2 x 10-5 2 x 10-5 2 x 10-7 2 x 10-9
----------------------------------------------------------------------------------------------------------------
\a\ Do not round to nearest integer.
\b\ Use if the hazardous substance is present or deposited as a liquid.
\c\ Use if the entire interval from the source to the aquifer being evaluated is karst.
If none of the hazardous substances eligible to
be evaluated can be assigned a mobility factor value, use a default
value of 0.002 as the mobility factor value for all these hazardous
substances.
Determine the water solubility to be used in table 3-8 for the
hazardous substance as follows (use this same water solubility for all
aquifers):
For any hazardous substance that does not meet
the criteria for an observed release by chemical analysis, if the
hazardous substance is present or deposited as a liquid, use the water
solubility category ``Present as Liquid'' in table 3-8 to assign the
mobility factor value to that hazardous substance.
Otherwise:
-For any hazardous substance that is a metal (or metalloid) and that
does not meet the criteria for an observed release by chemical analysis,
establish a water solubility for the hazardous substance as follows:
-Determine the overall range of water solubilities for compounds of
this hazardous substance (consider all compounds for which adequate
water solubility information is available, not just compounds identified
as present at the site).
-Calculate the geometric mean of the highest and the lowest water
solubility in this range.
-Use this geometric mean as the water solubility in assigning the
hazardous substance a mobility factor value from table 3-8.
-For any other hazardous substance (either organic or inorganic) that
does not meet the criteria for an observed release by chemical analysis,
use the water solubility of that hazardous substance to assign a
mobility factor value from table 3-8 to the hazardous substance.
For the aquifer being evaluated, determine the distribution
coefficient to be used in table 3-8 for the hazardous substance as
follows:
For any hazardous substance that does not meet
the criteria for an observed release by chemical analysis, if the entire
interval from a source at the site to the aquifer being evaluated is
karst, use the distribution coefficient category ``Karst'' in table 3-8
in assigning the mobility factor value for that hazardous substance for
that aquifer.
Otherwise:
-For any hazardous substance that is a metal (or metalloid) and that
does not meet the criteria for an observed release by chemical analysis,
use the distribution coefficient for the metal or (metalloid) to assign
a mobility factor value from table 3-8 for that hazardous substance.
-For any other inorganic hazardous substance that does not meet the
criteria for an observed release by chemical analysis,
[[Page 144]]
use the distribution coefficient for that inorganic hazardous substance,
if available, to assign a mobility factor value from table 3-8. If the
distribution coefficient is not available, use a default value of ``less
than 10'' as the distribution coefficient, except: for asbestos use a
default value of ``greater than 1,000'' as the distribution coefficient.
-For any hazardous substance that is organic and that does not meet the
criteria for an observed release by chemical analysis, establish a
distribution coefficient for that hazardous substance as follows:
-Estimate the Kd range for the hazardous substance using
the following equation:
Kd = (Koc)(fs)
where:
Koc = Soil-water partition coefficient for organic carbon for
the hazardous substance.
fs = Sorbent content (fraction of clays plus organic carbon)
in the subsurface.
-Use fs values of 0.03 and 0.77 in the above equation to
establish the upper and lower values of the Kd
range for the hazardous substance.
-Calculate the geometric mean of the upper and lower Kd
range values. Use this geometric mean as the distribution
coefficient in assigning the hazardous substance a mobility
factor value from table 3-8.
3.2.1.3 Calculation of toxicity/mobility factor value. Assign each
hazardous substance a toxicity/mobility factor value from table 3-9,
based on the values assigned to the hazardous substance for the toxicity
and mobility factors. Use the hazardous substance with the highest
toxicity/mobility factor value for the aquifer being evaluated to assign
the value to the toxicity/mobility factor for that aquifer. Enter this
value in table 3-1.
Table 3-9--Toxicity/Mobility Factor Values \a\
------------------------------------------------------------------------
Mobility Toxicity factor value
factor ------------------------------------------------------------
value 10,000 1,000 100 10 1 0
------------------------------------------------------------------------
1.0 10,000 1,000 100 10 1 0
0.2 2,000 200 20 2 0.2 0
0.01 100 10 1 0.1 0.01 0
0.002 20 2 0.2 0.02 0.002 0
0.0001 1 0.1 0.01 0.001 1 x 10-4 0
2 x 10-5 0.2 0.02 0.002 2 x 10-4 2 x 10-5 0
2 x 10-7 0.002 2 x 10-4 2 x 10-5 2 x 10-6 2 x 10-7 0
2 x 10-9 2 x 10-5 2 x 10-6 2 x 10-7 2 x 10-8 2 x 10-9 0
------------------------------------------------------------------------
\a\ Do not round to nearest integer.
3.2.2 Hazardous waste quantity. Assign a hazardous waste quantity
factor value for the ground water pathway (or aquifer) as specified in
section 2.4.2. Enter this value in table 3-1.
3.2.3 Calculation of waste characteristics factor category value.
Multiply the toxicity/mobility and hazardous waste quantity factor
values, subject to a maximum product of 1 x 10\8\. Based on this
product, assign a value from table 2-7 (section 2.4.3.1) to the waste
characteristics factor category. Enter this value in table 3-1.
3.3 Targets. Evaluate the targets factor category for an aquifer
based on four factors: nearest well, population, resources, and Wellhead
Protection Area. Evaluate these four factors based on targets within the
target distance limit specified in section 3.0.1.1 and the aquifer
boundaries specified in section 3.0.1.2. Determine the targets to be
included in evaluating these factors for an aquifer as specified in
section 3.0.
3.3.1 Nearest well. In evaluating the nearest well factor, include
both the drinking water wells drawing from the aquifer being evaluated
and those drawing from overlying aquifers as specified in section 3.0.
Include standby wells in evaluating this factor only if they are used
for drinking water supply at least once every year.
If there is an observed release by direct observation for a drinking
water well within the target distance limit, assign Level II
concentrations to that well. However, if one or more samples meet the
criteria for an observed release for that well, determine if that well
is subject to Level I or Level II concentrations as specified in
sections 2.5.1 and 2.5.2. Use the health-based benchmarks from table 3-
10 in determining the level of contamination.
Assign a value for the nearest well factor as follows:
If one or more drinking water wells is subject to
Level I concentrations, assign a value of 50.
If not, but if one or more drinking water wells
is subject to Level II concentrations, assign a value of 45.
If none of the drinking water wells is subject to
Level I or Level II concentrations, assign a value as follows:
[[Page 145]]
-If one of the target aquifers is a karst aquifer that underlies any
portion of the sources at the site and any well draws drinking water
from this karst aquifer within the target distance limit, assign a value
of 20.
-If not, determine the shortest distance to any drinking water well, as
measured from any source at the site with a ground water containment
factor value greater than 0. Select a value from table 3-11 based on
this distance. Assign it as the value for the nearest well factor.
Enter the value assigned to the nearest well factor in table 3-1.
Table 3-10--Health-Based Benchmarks for Hazardous Substances in Drinking
Water
------------------------------------------------------------------------
Concentration corresponding to Maximum Contaminant
Level (MCL).
Concentration corresponding to a nonzero Maximum
Contaminant Level Goal (MCLG).
Screening concentration for cancer corresponding to
that concentration that corresponds to the 10-6 individual cancer risk
for oral exposures.
Screening concentration for noncancer toxicological
responses corresponding to the Reference Dose (RfD) for oral exposures.
------------------------------------------------------------------------
Table 3-11--Nearest Well Factor Values
------------------------------------------------------------------------
Assigned
Distance from source (miles) value
------------------------------------------------------------------------
Level I concentrations \a\.................................. 50
Level II concentrations \a\................................. 45
0 to \1/4\.................................................. 20
Greater than \1/4\ to \1/2\................................. 18
Greater than \1/2\ to 1..................................... 9
Greater than 1 to 2......................................... 5
Greater than 2 to 3......................................... 3
Greater than 3 to 4......................................... 2
Greater than 4.............................................. 0
------------------------------------------------------------------------
\a\ Distance does not apply.
3.3.2 Population. In evaluating the population factor, include those
persons served by drinking water wells within the target distance limit
specified in section 3.0.1.1. For the aquifer being evaluated, count
those persons served by wells in that aquifer and those persons served
by wells in overlying aquifers as specified in section 3.0. Include
residents, students, and workers who regularly use the water. Exclude
transient populations such as customers and travelers passing through
the area. Evaluate the population based on the location of the water
supply wells, not on the location of residences, work places, etc. When
a standby well is maintained on a regular basis so that water can be
withdrawn, include it in evaluating the population factor.
In estimating residential population, when the estimate is based on
the number of residences, multiply each residence by the average number
of persons per residence for the county in which the residence is
located.
In determining the population served by a well, if the water from
the well is blended with other water (for example, water from other
ground water wells or surface water intakes), apportion the total
population regularly served by the blended system to the well based on
the well's relative contribution to the total blended system. In
estimating the well's relative contribution, assume each well and intake
contributes equally and apportion the population accordingly, except: if
the relative contribution of any one well or intake exceeds 40 percent
based on average annual pumpage or capacity, estimate the relative
contribution of the wells and intakes considering the following data, if
available:
Average annual pumpage from the ground water
wells and surface water intakes in the blended system.
Capacities of the wells and intakes in the
blended system.
For systems with standby ground water wells or standby surface water
intakes, apportion the total population regularly served by the blended
system as described above, except:
Exclude standby surface water intakes in
apportioning the population.
When using pumpage data for a standby ground
water well, use average pumpage for the period during which the standby
well is used rather than average annual pumpage.
For that portion of the total population that
could be apportioned to a standby ground water well, assign that portion
of the population either to that standby well or to the other ground
water well(s) and surface water intake(s) that serve that population; do
not assign that portion of the population both to the standby well and
to the other well(s) and intake(s) in the blended system. Use the
apportioning that results in the highest population factor value.
(Either include all standby well(s) or exclude some or all of the
standby well(s) as appropriate to obtain this highest value.) Note that
the specific standby well(s) included or excluded and, thus, the
specific apportioning may vary in evaluating different aquifers and in
evaluating the surface water pathway.
3.3.2.1 Level of contamination. Evaluate the population served by
water from a point of withdrawal based on the level of contamination for
that point of withdrawal. Use the applicable factor: Level I
concentrations, Level II concentrations, or potential contamination.
If no samples meet the criteria for an observed release for a point
of withdrawal and there is no observed release by direct observation for
that point of withdrawal, evaluate that point of withdrawal using the
potential contamination factor in section 3.3.2.4. If
[[Page 146]]
there is an observed release by direct observation, use Level II
concentrations for that point of withdrawal. However, if one or more
samples meet the criteria for an observed release for the point of
withdrawal, determine which factor (Level I or Level II concentrations)
applies to that point of withdrawal as specified in sections 2.5.1 and
2.5.2. Use the health-based benchmarks from table 3-10 in determining
the level of contamination. Evaluate the point of withdrawal using the
Level I concentrations factor in section 3.3.2.2 or the Level II
concentrations factor in section 3.3.2.3, as appropriate.
For the potential contamination factor, use population ranges in
evaluating the factor as specified in section 3.3.2.4. For the Level I
and Level II concentrations factors, use the population estimate, not
population ranges, in evaluating both factors.
3.3.2.2 Level I concentrations. Sum the number of people served by
drinking water from points of withdrawal subject to Level I
concentrations. Multiply this sum by 10. Assign this product as the
value for this factor. Enter this value in table 3-1.
3.3.2.3 Level II concentrations. Sum the number of people served by
drinking water from points of withdrawal subject to Level II
concentrations. Do not include those people already counted under the
Level I concentrations factor. Assign this sum as the value for this
factor. Enter this value in table 3-1.
3.3.2.4 Potential contamination. Determine the number of people
served by drinking water from points of withdrawal subject to potential
contamination. Do not include those people already counted under the
Level I and Level II concentrations factors.
Assign distance-weighted population values from table 3-12 to this
population as follows:
Use the ``Karst'' portion of table 3-12 to assign
values only for that portion of the population served by points of
withdrawal that draw drinking water from a karst aquifer that underlies
any portion of the sources at the site.
-For this portion of the population, determine the number of people
included within each ``Karst'' distance category in table 3-12.
Table 3-12--Distance-Weighted Population Values for Potential Contamination Factor for Ground Water Migration Pathway \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of people within the distance category
-------------------------------------------------------------------------------------------------
Distance category (miles) 1 11 31 101 1,001 3,001 10,001 30,001 100,001 300,001 1,000,001
0 to to to to 301 to to to to to to to to
10 30 100 300 1,000 3,000 10,000 30,000 100,000 300,000 1,000,000 3,000,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Other Than Karst \b\:
0 to \1/4\............................................ 0 4 17 53 164 522 1,633 5,214 16,325 52,137 163,246 521,360 1,632,455
Greater than \1/4\ to \1/2\........................... 0 2 11 33 102 324 1,013 3,233 10,122 32,325 101,213 323,243 1,012,122
Greater than \1/2\ to 1............................... 0 1 5 17 52 167 523 1,669 5,224 16,684 52,239 166,835 522,385
Greater than 1 to 2................................... 0 0.7 3 10 30 94 294 939 2,939 9,385 29,384 93,845 293,842
Greater than 2 to 3................................... 0 0.5 2 7 21 68 212 678 2,122 6,778 21,222 67,777 212,219
Greater than 3 to 4................................... 0 0.3 1 4 13 42 131 417 1,306 4,171 13,060 41,709 130,596
--------------------------------------------------------------------------------------------------------------------------------------------------------
Karst \c\:
0 to \1/4\............................................ 0 4 17 53 164 522 1,633 5,214 16,325 52,137 163,246 521,360 1,632,455
Greater than \1/4\ to \1/2\........................... 0 2 11 33 102 324 1,013 3,233 10,122 32,325 101,213 323,243 1,012,122
Greater than \1/2\ to 1............................... 0 2 9 26 82 261 817 2,607 8,163 26,068 81,623 260,680 816,227
Greater than 1 to 2................................... 0 2 9 26 82 261 817 2,607 8,163 26,068 81,623 260,680 816,227
Greater than 2 to 3................................... 0 2 9 26 82 261 817 2,607 8,163 26,068 81,623 260,680 816,227
Greater than 3 to 4................................... 0 2 9 26 82 261 817 2,607 8,163 26,068 81,623 260,680 816,227
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Round the number of people present within a distance category to nearest integer. Do not round the assigned distance-weighted population value to
nearest integer.
\b\ Use for all aquifers, except karst aquifers underlying any portion of the sources at the site.
\c\ Use only for karst aquifers underlying any portion of the sources at the site.
-Assign a distance-weighted population value for each distance category
based on the number of people included within the distance category.
[[Page 147]]
Use the ``Other Than Karst'' portion of table 3-
12 for the remainder of the population served by points of withdrawal
subject to potential contamination.
-For this portion of the population, determine the number of people
included within each ``Other Than Karst'' distance category in table 3-
12.
-Assign a distance-weighted population value for each distance category
based on the number of people included within the distance category.
Calculate the value for the potential contamination factor (PC) as
follows:
[GRAPHIC] [TIFF OMITTED] TC15NO91.147
where:
Wi = Distance-weighted population from ``Other Than Karst''
portion of table 3-12 for distance category i.
Ki = Distance-weighted population from ``Karst'' portion of
table 3-12 for distance category i.
n = Number of distance categories.
If PC is less than 1, do not round it to the nearest integer; if PC
is 1 or more, round to the nearest integer. Enter this value in table 3-
1.
3.3.2.5 Calculation of population factor value. Sum the factor
values for Level I concentrations, Level II concentrations, and
potential contamination. Do not round this sum to the nearest integer.
Assign this sum as the population factor value for the aquifer. Enter
this value in table 3-1.
3.3.3 Resources. To evaluate the resources factor, select the
highest value specified below that applies for the aquifer being
evaluated. Assign this value as the resources factor value for the
aquifer. Enter this value in table 3-1.
Assign a resources value of 5 if water drawn from any target well
for the aquifer being evaluated or overlying aquifers (as specified in
section 3.0) is used for one or more of the following purposes:
Irrigation (5-acre minimum) of commercial food
crops or commercial forage crops.
Watering of commercial livestock.
Ingredient in commercial food preparation.
Supply for commercial aquaculture.
Supply for a major or designated water recreation
area, excluding drinking water use.
Assign a resources value of 5 if no drinking water wells are within
the target distance limit, but the water in the aquifer being evaluated
or any overlying aquifers (as specified in section 3.0) is usable for
drinking water purposes.
Assign a resources value of 0 if none of the above applies.
3.3.4 Wellhead Protection Area. Evaluate the Wellhead Protection
Area factor based on Wellhead Protection Areas designated according to
section 1428 of the Safe Drinking Water Act, as amended. Consider only
those Wellhead Protection Areas applicable to the aquifer being
evaluated or overlying aquifers (as specified in section 3.0). Select
the highest value below that applies. Assign it as the value for the
Wellhead Protection Area factor for the aquifer being evaluated. Enter
this value in table 3-1.
Assign a value of 20 if either of the following criteria applies for
the aquifer being evaluated or overlying aquifers:
A source with a ground water containment factor
value greater than 0 lies, either partially or fully, within or above
the designated Wellhead Protection Area.
Observed ground water contamination attributable
to the sources at the site lies, either partially or fully, within the
designated Wellhead Protection Area.
If neither criterion applies, assign a value of 5, if, within the
target distance limit, there is a designated Wellhead Protection Area
applicable to the aquifer being evaluated or overlying aquifers.
Assign a value of 0 if none of the above applies.
3.3.5 Calculation of targets factor category value. Sum the factor
values for nearest well, population, resources, and Wellhead Protection
Area. Do not round this sum to the nearest integer. Use this sum as the
targets factor category value for the aquifer. Enter this value in table
3-1.
3.4 Ground water migration score for an aquifer. For the aquifer
being evaluated, multiply the factor category values for likelihood of
release, waste characteristics, and targets, and round the product to
the nearest integer. Then divide by 82,500. Assign the resulting value,
subject to a maximum value of 100, as the ground water migration pathway
score for the aquifer. Enter this score in table 3-1.
3.5 Calculation of ground water migration pathway score. Calculate a
ground water migration score for each aquifer underlying the sources at
the site, as appropriate. Assign the highest ground water migration
score for an aquifer as the ground water migration pathway score
(Sgw) for the site. Enter this score in table 3-1.
4.0 Surface Water Migration Pathway
4.0.1 Migration components. Evaluate the surface water migration
pathway based on two migration components:
Overland/flood migration to surface water (see
section 4.1).
Ground water to surface water migration (see
section 4.2).
[[Page 148]]
Evaluate each component based on the same three threats: drinking water
threat, human food chain threat, and environmental threat.
Score one or both components, considering their relative importance.
If only one component is scored, assign its score as the surface water
migration pathway score. If both components are scored, select the
higher of the two scores and assign it as the surface water migration
pathway score.
4.0.2 Surface water categories. For HRS purposes, classify surface
water into four categories: rivers, lakes, oceans, and coastal tidal
waters.
Rivers include:
Perennially flowing waters from point of origin
to the ocean or to coastal tidal waters, whichever comes first, and
wetlands contiguous to these flowing waters.
Aboveground portions of disappearing rivers.
Man-made ditches only insofar as they perennially
flow into other surface water.