[CPEO-MEF] EPA Memo on Decision Documents and ICs

[Lenny Siegel <lsiegel@cpeo.org>]

In August, the heads of U.S. EPA's federal facilities offices sent a
memorandum to the agency's regional offices warning them not to approve
cleanup remedies that incorporate institutional controls unless the
documents ensure that those controls will be implemented effectively.
The memorandum, which follows, is available as a barely legible PDF file from
http://www.epa.gov/swerffrr/doc/rodmemo.pdf.

August 17, 2001

MEMORANDUM

SUBJECT: EPA Concurrence/Approval of Federal Facility Proposed Plans and
Records of Decision and other Documents

FROM: 
James E. Woolford, Director, Federal Facilities Restoration and Reuse
Office, OSWER
Craig Hooks, Director, Federal Facilities Enforcement Office, OECA

TO:
Superfund National Program Managers, Regions 1-10
Office of Regional Counsel, Regions 1-10

The purpose of this memorandum is to ensure that EPA Regions scrutinize
all proposed plans, draft and final RODs, post-ROD documents which
address institutional controls (ICs) to verify that they adequately
document the objectives of the ICs, and clearly identify who has
responsibility for implementation, monitoring, reporting and enforcement
of the IC.

EPA has an obligation when signing or approving CERCLA decision
documents to ensure that the remedies, including institutional controls
(ICs) which are components of remedies, are protective and will remain
so in the future. This responsibility is consistent with this Agency's
obligation under CERCLA remedy-selection criteria established in the
National Contingency Plan at §300.430(e)(9)(iii), to assess the
long-term reliability of ongoing remedial measures as part of evaluating
a remedy's effectiveness in protecting public health and the environment.

The long-term effectiveness of remedies, including ICs, is a high
priority for EPA's federal facility program. Consequently, we are
requesting Regions to take prompt action to ensure that, for Federal
facilities, EPA Regions only approve decision documents which adequately
document the means of ensuring the short and long-term effectiveness of
ICs. Regions are directed to scrutinize all proposed plans, draft and
final RODs, post-ROD documents which address ICs, to ensure that they
adequately document the objectives of the ICs, and clearly identify who
has responsibility for implementing, monitoring and enforcement of the
ICs. Your review should ensure that EPA is provided a sufficient
oversight role in the implementation and maintenance of the selected
remedy and that the documents are consistent with CERCLA, the NCP, and
EPA policy and guidance or that they provide an adequate justification
to explain the variance.

If the Regional review finds an insufficient oversight role for EPA in
the post-remedy implementation and maintenance of the IC or you can make
a determination that the remedy decision document is inconsistent with
CERCLA, the National Contingency Plan or EPA policy and guidance,
particularly with respect to the adequacy of the IC information, the
Region should not approve the document under review. If the region
cannot reach an informal resolution of the issue, the Region should be
prepared to follow the dispute resolution process outlined in the
Federal Facility Agreement (FFA).

In the case of a remedy selection, the Region should be prepared to
proceed to select the remedy as described in CERCLA Section 120(c)(4)(A)
which provides for ultimate EPA selection of the remedy where the Region
is unable to reach agreement on the selection of the remedial action. If
there is no FFA in place, the Region should notify the federal agency of
our dispute with the proposed remedy and indicate its intention to
select the remedy within a certain time frame (such as 60 days) unless
the decision document is modified to conform with our concerns. If the
Region determines that it will not approve a decision document and
intends to select the remedy, please notify both Allison Abernathy in
FFRRO and Sally Dalzell in the Federal Facilities Enforcement Office
(FFEO) via email of the facilities and the particular operable units
where the situation arises and the specific reasons that a particular
decision document is not acceptable. Please give no less than 48 hours notice.

We recognize that many of these decision documents represent targets in
the Agency's Superfund Implementation Manual (SFIM) and Government
Performance Act (GPRA) processes. We are prepared to make adjustments to
your targets at the affected sites through the standard process for
target changes.

As discussed at the July Federal Facilities Leadership Council (FFLC)
meeting, we are requesting that during the August 29 FFLC call, the
regions should be prepared to identify: 1) which upcoming RODs would
likely be disapproved based on the IC issue (please be prepared to
describe briefly the reason why the ROD may not be acceptable) and any
associated post-ROD issue; and 2) good candidate cases for the DoD
post-ROD authority dispute. After the call, Regions will be requested to
provide written descriptions not later than September 7, to FFRRO and
FFEO. Should you identify any RODS which you are likely to disapprove
prior to that August 19 call, please notify Jim Woolford before you
inform the Federal agency so that headquarters can make any necessary
preparations in the event of dispute resolution.

If you have any questions on how to proceed, please contact Allison
Abernathy in FFRRO ... or Sally Dalzell in FFEO ....

[The two legal references above might be slightly wrong. A couple of
characters were difficult to read. - LS]

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
lsiegel@cpeo.org
http://www.cpeo.org

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