Re: [CPEO-MEF] Air Force to include land use controls in RODs

[CPEO Moderator <cpeo@cpeo.org>]

[The following is the complete text of the Navy-EPA Principles on
Post-ROD Management, described in our message last week. Note that
highlighting (italics, bolding, and underlining) has
been removed from this version.]
_______________________________________________________________

PRINCIPLES AND PROCEDURES FOR SPECIFYING, MONITORING AND
ENFORCEMENT OF LAND USE CONTROLS AND OTHER POST-ROD ACTIONS

PREAMBLE
Since the Department of Defense (DoD) /Environmental Protection Agency
(EPA) Model Interagency Agreement (IAG)/Federal Facility Agreement (FFA)
was developed in 1988, EPA and Navy have gained considerable knowledge
and understanding about post-Records of Decisions (ROD) activities,
especially Land Use Controls (LUCs).  Thinking, policies, regulations
and procedures concerning LUCs have evolved considerably since DoD and
EPA developed the
1988 FFA model language.  New statutes and regulations related to LUCs
are being considered in many states.  Accordingly, EPA and the
Department of the Navy (DON) believe that a set of Principles will
assist Navy field commands and EPA Regions to better implement our
respective
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) responsibilities.  The Principles described below do not
replace or substitute for any existing CERCLA statutory or regulatory
requirement.  Rather they provide a mutually agreeable framework to
provide a more efficient process to implement LUCs at National Priority
List
(NPL) installations.

These Principles will guide the EPA and DON personnel involved in these
decisions.  They are written in full knowledge that state regulatory and
trustee organizations have independent responsibilities and
authorities.  EPA and the DON recognize the importance of the state role
in
helping to ensure a cleanup is protective of human health and the
environment.  Headquarters EPA and DoD will jointly develop a
communications plan to ensure we include the states in this important
issue.

These Principles support the President's Management Agenda by focusing
on improving environmental results.  The Principles encourage continued
innovation and improvement in CERCLA implementation.  EPA and the
Components should continue to propose and pilot initiatives at Component
installations or at other properties for which they are responsible.
This
includes proposing variations in, or alternatives such as
performance-based practices to, the approach described in this document.

PRINCIPLES

* At sites where remedial action is determined necessary to protect
human health and the environment, the actions must be documented in
accordance with CERCLA and its implementing regulation, the National Oil
and Hazardous Substances Pollution Contingency Plan (NCP).

* At sites where contaminants are left in place at levels that do not
allow for unrestricted use, LUCs are used to ensure that the
contaminants do not pose an unacceptable risk to human health or the
environment.  LUCs consist of engineering controls and/or institutional
controls.

* The EPA and DON desire to ensure that LUCs are specified, implemented,
monitored, reported on, and enforced in an efficient, cost-effective
manner that ensures long-term protectiveness. In addition, in accordance
with CERCLA and the NCP, if an equally protective but more
cost-effective remedy is identified, DON may propose, and EPA will
consider,
using the more cost-effective remedy.

* The EPA acknowledges the DON's role and responsibilities as the
Federal Lead Agent for response actions.  This role includes selecting
remedies with EPA at NPL sites and funding response actions.

* The DON acknowledges EPA's role and responsibilities for regulatory
oversight and enforcement at NPL sites.  This role includes ultimate
ability to select the remedy at NPL sites if EPA disagrees with DON's
proposed remedy and dispute resolution fails.

* Federal Facilities Agreements (FFAs) are CERCLA 120 agreements used by
DON and EPA to describe in detail the roles and relationships among DON,
EPA and often the state.  They form the foundation for these
relationships regarding DON's response actions at NPL sites.  FFAs also
contain installation specific details and procedures for planning,
budgeting, and dispute resolution.  DON and EPA desire FFAs to be as
standardized as possible and relatively static (i.e., the FFA should not
need to be changed for a given installation).

* Primary Documents developed under the FFA are relatively dynamic and
document important plans and actions.  In that sense, they are
action-oriented.  For example, a Site Management Plan is revised yearly
via collaboration among DON and EPA remedial project managers and is an
important tool for planning response actions and demonstrating
commitment to the public.  Likewise, a LUC Remedial Design (RD) or
Remedial Action Work Plan (RAWP) describes those actions that are needed
to ensure viability of both long-term engineered and institutional
control remedies.

* Records of Decision should document the remedy selection process and
remedy decision in accordance with CERCLA and the NCP, as well as
applicable and appropriate guidance, regulations, standards, criteria,
and policy.  With regard to LUCs, the ROD should describe the LUC
objectives; explain why and for what purpose the LUCs are necessary,
where they will
be necessary, and the entities responsible for implementing, monitoring,
reporting on and enforcing the LUCs.  The ROD will refer to the RD or
RAWP for implementation actions.

* Where situations arise (such as new cleanup standards; new or
additional contamination is discovered on a site, etc.) that require
additional response actions that go beyond the actions and objectives
described in a ROD, and any related ROD Amendment or Explanation of
Significant
Difference (ESD), the additional actions required and their remedial
objectives will be further documented in an ESD or ROD Amendment, as
appropriate.   There may also arise situations after a remedy has been
completed that require removal actions to protect human health
and the environment, such as the newly discovered contamination posing
an imminent risk to human health. In such circumstances, documentation
as required in the removal process should be created.

* Given the above, EPA and DON agree that the most efficient framework
for specifying, implementing, monitoring, reporting on and enforcing
LUCs is:
* a standard FFA for NPL sites,
* a clear, concise RoD with LUC objectives, and
* a RD or RAWP with LUC implementation actions.

Note:  These documents are described more fully below.

* EPA and DON will move expeditiously to finalize all outstanding FFAs
using a standard FFA template as a guide to minimize the
development/writing process.

Note:  A "standard FFA" means the Agreement presently being used between
EPA and DoD using the DoD-EPA model language, plus site-specific
statements of fact, plus the additional primary document shown in
Attachment (1).

* EPA and DoD will initiate a task force with appropriate headquarters
and field representatives from EPA and the military services.  The task
force will make recommendations as to how to ensure that the same
documentation can be used to memorialize both remedial action completion
and deletion, as well as to determine the process whereby DoD and EPA
will document the
completion of the remedial actions required by the ROD in a single
primary document.  The task force will examine ways to reduce document
size, review time, and revisions.  The task force will recommend changes
to guidance and policy that will help reduce document size or streamline
the
process in order to manage costs.  The task force may also include other
stakeholders.

After reviewing the task force recommendations EPA and DoD will
determine how to ensure that the same documentation can be used to
memorialize both remedial action completion and deletion, as well as to
determine the process whereby DoD and EPA will document the completion
of the remedial actions required by the ROD in a single primary
document.  In
addition, EPA and DoD will streamline the remedial process and better
manage costs.

While the efforts of the Task Force are meant to complement the
Principles described above, its work is separate from the Principles and
must not impede their implementation.  The work of the Task Force also
must not impede completion or closeout of individual sites or operable
units.


GENERAL PROCEDURES

1.  Federal Facility Agreement

* The LUC implementation and operation/maintenance actions will be
included in the RD or RAWP which are already primary documents
deliverable under standard FFAs.  In addition, the same documentation as
determined by the task force and approved by the Parties to memorialize
both the remedial action completion and deletion will be provided as a
primary document for new FFAs. For existing FFAs without such a primary
document, this document will be provided as an attachment to the RD or
RAWP with the same enforceability as a primary document.


Note:  Model FFA language will need to be supplemented to reflect these
Principles and Procedures.  Attachment (1) contains necessary
modifications to FFA language.

2. Record of Decision

* It is EPA's and DON's intent that Records of Decision (RoDs) continue
to be consistent with CERCLA and the National Contingency Plan. Relative
to land use controls and institutional controls, the ROD shall:

* Describe the risk(s) necessitating the remedy including LUCs;

* Document risk exposure assumptions and reasonably anticipated land
uses;

* Generally describe the LUC, the logic for its selection and any
related deed restrictions/notifications;

* State the LUC performance objectives.  (See attachment (2) for
examples of LUC performance objectives);

* List the parties responsible for implementing, monitoring, reporting
on, and enforcement of the LUC;

* Provide a description of the area/property covered by the LUC (should
include a map);\

* Provide the expected duration of the LUCs; and

* Refer to the RD or RAWP for LUC implementation actions, since these
details may need to be adjusted periodically based on site conditions
and other factors.  (See attachment (2) for examples of LUC
implementation actions).

* The ROD at transferring properties will need to be crafted based on
the responsibilities of the new owner and state-specific laws and
regulations regarding LUCs.  At transferring properties, compliance with
the LUC performance objectives may involve actions by the subsequent
owners in accordance with deed restrictions, however, ultimate
responsibility for assuring that the objectives are met remains with DON
as the party responsible under CERCLA for the remedy.  DON and
regulators will consult to determine appropriate enforcement actions
should there be a
failure of a LUC objective at a transferred property.

3. LUC Remedial Design (RD) or Remedial Action Work Plan (RAWP)

* The RD or RAWP will be provided as a primary document in accordance
with the FFA.

* The RD or RAWP will describe short and long-term implementation
actions and responsibilities for the actions in order to ensure
long-term viability of the remedy which may include both LUCs (e.g.,
institutional controls) and an engineered portion (e.g., landfill caps,
treatment systems) of the remedy.  The term "implementation actions"
includes all actions to implement, operate, maintain, and enforce the
remedy. Depending on the LUC and site conditions, these actions can
include:

* Conducting CERCLA five-year remedy reviews for the engineered remedies
and/or LUCs.

* Conducting periodic monitoring or visual inspections of LUCs;
frequency to be determined by site-specific conditions.

* Reporting inspection results.

* Notifying regulators prior to any changes in the risk, remedy or land
use including any LUC failures with proposed corrective action.

* Including a map of the site where LUCs are to be implemented.


For active bases,

* Developing internal DON policies and procedures with respect to LUC
monitoring, reporting, and enforcement in order to institutionalize LUC
management and to ensure base personnel are aware of restrictions and
precautions that should be taken; Consulting with EPA at least 14 days
prior to making any changes to these policies and procedures to ensure
that any substantive changes maintain a remedy that is protective of
human health and the environment.

* Developing a comprehensive list of LUCs with associated boundaries and
expected durations.

* Notifying regulators of planned property conveyance, including
federal-to-federal transfers.  "Property conveyance" includes conveying
leaseholds, easements and other partial interests in real
property.

* Obtaining regulator concurrence before modifying or terminating land
use control objectives or implementation actions.

For closing bases/excess property:

* Notifying regulators of planned property conveyance, including
federal-to-federal transfers.

* Consulting with EPA on the appropriate wording for land use
restrictions and providing a copy of the wording from the executed deed.

* Defining responsibilities of the DON, the new property owner and
state/local government agencies with respect to LUC implementation,
monitoring, reporting, and enforcement.

* Providing a comprehensive list of LUCs with associated boundaries and
expected durations.

* Obtaining regulator concurrence before modifying or terminating land
use control objectives or implementation actions.

Note: The mix of responsibilities among DON, the new property owner, and
other government agencies depends on state and federal laws and
regulations that are applied in the state.  Implementation actions at
closing bases may include elements characteristic of both active
and closing bases, depending on the timing of transfer.

* Should there be a failure to complete LUC implementation actions at an
active base, the EPA Region shall notify the installation and seek
immediate action.  Should there be a failure to complete LUC actions
after such notification to the base, EPA may notify the Deputy Assistant

Secretary of the Navy (Environment) who will ensure that LUC actions are
taken.

* Should there be a failure to complete implementation actions that are
the responsibility of a subsequent owner or third party at a transferred
property, EPA and DON will consult on the appropriate enforcement
action. Should there be a failure to complete implementation actions
that are the remaining responsibility of DON at a transferred property,
the EPA Region will notify the cognizant Navy Engineering Field
Division.  If necessary, EPA may notify the Deputy Assistant Secretary
of the Navy (Environment) who will ensure that corrective action is
taken.

Note:  The RD or RAWP should contain no more or no less implementation
actions than needed to ensure the viability of the remedy. There is a
delicate balance required.  EPA and DON both desire to ensure
protectiveness while minimizing process and documents.  The parties
agree
to work diligently to define the appropriate implementation actions for
each LUC.  EPA and DON believe the key elements can be easily developed
between RPMs in a matter of a few hours.  Based on detailed discussions
and the examples shown in Attachment (2), EPA and DON expect that the
LUC portion of the RDs or RAWPs to be in the range of 2-6 pages.  If
combined
with a sampling plan, there may be additional pages needed to list the
analyses, sampling locations and frequencies.

4. LUC Data

* The DON will ensure that all LUCs at its installations are included in
the Service LUC database.

Attachments:
1.  Incorporating Land Use Control (LUC) Objectives and Implementing
Actions into Federal Facilities Agreements (FFAs)
2.  Examples of LUC objectives and LUC Implementation Actions


Attachment 1

INCORPORATING LAND USE CONTROL (LUC) OBJECTIVES AND
IMPLEMENTATION ACTIONS INTO FEDERAL FACILITIES AGREEMENTS (FFAs)

FFA Model Template Additions/Changes

1.  Definitions Section:

Add:  "Land use controls" shall mean any restriction or administrative
action, including engineering and institutional controls, arising from
the need to reduce risk to human health and the environment.

2.  Primary Documents:

Add:  A document memorializing remedial action completion.

Note:  EPA and DoD believe it is important that a primary document: (1)
document the completion of remedy-in-place and/or site close-out and (2)
receive concurrence from EPA. The task force discussed above will make
recommendations on the scope and content of the document, and DoD and
EPA will determine this document after reviewing the task force
recommendations.  In the meantime, EPA and DON shall enter into FFAs
which include a primary document memorializing remedy completion.  The
document shall not duplicate information in the Administrative Record or
previously provided to EPA.  Previously provided information shall be
referenced and itemized.  New information/data (e.g., sampling data) may
be
needed to demonstrate that the Remedial Action Objectives have been met.
The report shall also include any as-built drawings for remedies if
different from the remedial design.  EPA and DoD do not envision this to
be a lengthy document, but shall contain only the information needed to
justify the remedy completion.  EPA and DoD believe the document should
discuss how
the remedial objectives in the ROD have been met.  It should not be used
to expand the scope of requirements beyond the remedial actions required
in the original ROD or any subsequent amendment or explanation of
significant difference.  Instead, if new requirements are needed
for a protective remedy, these will be documented in an Explanation of
Significant Difference or ROD Amendment, as appropriate, prior to
reaching the milestone.  The EPA and DoD will determine the precise
nature of this document after reviewing the task force's
recommendations.

Change:  Eliminate the sub-bullets (subsidiary documents) under remedial
action work plan for document streamlining purposes.


Attachment 2

EXAMPLES OF LUC OBJECTIVES AND LUC IMPLEMENTATION ACTIONS
(Note:  Actions are to be tailored to site-specific conditions.
  This is neither a mandatory nor a complete list)

LUC OBJECTIVES (contained in ROD)

* Ensure no construction on, excavation of, or breaching of the landfill
cap.
* Ensure no residential use or residential development of the property.
* Ensure no withdrawal and/or use of groundwater.
* Ensure no excavation of soils without a use permit and special
handling procedures.

LUC IMPLEMENTATION ACTIONS (contained in the RD or RAWP)

* Conduct a CERCLA five-year remedy review of the LUC and provide to EPA
for review.
* Conduct annual inspections of the LUC and report results (active or
BRAC- responsible party to be defined).
* Record the LUC in the base master plan. (active)
* Produce a survey plat of the LUC by a state registered land surveyor.
(active or BRAC).
* File the survey plat with the local government/Circuit Court for
purposes of public notification (active or BRAC)
* Place a survey plat in CERCLA administrative record, and send copies
to EPA and state. (active or BRAC).
* Develop and implement a base procedure that requires excavation to be
approved by the Public Works Officer or equivalent official. (active)
* Develop and implement a base procedure that requires changes in land
use to be approved by the Public Works Officer or equivalent official.
(active)
* Notify the regulatory agencies 45 days in advance of any Base
proposals for a major land use change at a site inconsistent with the
use restrictions and exposure assumptions described in the RoD, any
anticipated action that may disrupt the effectiveness of the land use
controls, any action that might alter or negate the need for the land
use controls, or any anticipated transfer of the property subject to the
land use controls.
* Obtain regulator concurrence before modifying or terminating land use
control objectives or implementation actions.
* Maintain a comprehensive list of LUCs with associated boundaries and
expected durations.

Note:  These examples are consistent with draft EPA guidance:
"Describing Institutional Controls in Remedy Decision Documents at
Active Federal Facilities".

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
CPEO: A DECADE OF SUCCESS.  Your generous support will ensure that our 
important work on military and environmental issues will continue.  
Please consider one of our donation options.  Thank you.
http://www.groundspring.org/donate/index.cfm?ID=2086-0|721-0