EPA - FINAL GUIDANCE ON ADMINISTRATIVE …Administrative Records for Selecting CERCLA Response...

oocoor-nUNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON. D.C. 20460

DEC -3 1990OFFICE OF

SOLID WASTE AND EMERGENCY RESPONSE

OSWER Directive // 9833.3A-1

MEMORANDUM

SUBJECT: Final Guidance on Administrative Records for SelectingCERCLA Response Actions

FROM: Don R.Assistant Adminis

TO: Regional Administrators, Regions I-X

This memorandum transmits to you our "Final Guidance onAdministrative Records for Selecting CERCLA Response Actions."This document replaces the "Interim Guidance on AdministrativeRecords for Selection of CERCLA Response Actions," previouslyissued on March 1, 1989.

The guidance sets forth the policy and procedures governingthe compilation and establishment of administrative records forselecting response actions under the Comprehensive EnvironmentalResponse, Compensation, and Liability Act of 1980 (CERCLA) , asamended by the Superfund Amendments and Reauthorization Act of1986 (SARA) . This guidance is also consistent with and expandson Subpart I of the National Oil and Hazardous SubstancesPollution Contingency Plan, 55 Fed. Reg. 8859 (March 8, 1990).

This guidance reflects input received from the Regions,Headquarters and the Department of Justice. There have beenseveral drafts of this guidance and comments have beenincorporated. I thank you for your assistance.

Attachment

cc: Director, Waste Management Division,Regions I, IV, V, and VII

Director, Emergency and Remedial Response Division,Region II

Director, Hazardous Waste Management Division,Regions III, VI, VIII, and IX

Director, Hazardous Waste Division, Region XDirector, Environmental Services Division,

Regions I, VI, and VIIRegional Counsel, Regions I-XAdministrative Record Coordinators, Regions I-X

Printed on Recycled Paper

EPA Region 5 Records Ctr.

209412

OSWER Directive No. 9833.3A-1

FINAL GUIDANCE ON ADMINISTRATIVE RECORDSFOR

SELECTING CERCLA RESPONSE ACTIONS

U.S. Environmental Protection AgencyOffice of Solid Waste and Emergency Response

Washington, D.C. 20460

TABLE OF CONTENTS

I. INTRODUCTION 1

A. Purpose and Scope of the Administrative Record ... 1

B. Judicial Review 3

C. Public Participation 4

II. PROCEDURES FOR ESTABLISHING THE ADMINISTRATIVE RECORD . . 4

A. Administrative Record Coordinator 4

B. Multiple Response Actions 6

C. Compilation 6

D. Index 7

E. Location 8

1. General 8

2. Special Documents 9

F. Public Availability 12

1. General 12

2. Remedial Actions 13

3. Removal Action 14

G. Maintaining the Record 17

H. Confidential File 19

I. Copying 20

J. Micrographics 21

K. Certification 22

III.CONTENTS OF THE ADMINISTRATIVE RECORD 22

A. Remedial Actions 22

B. Removal Actions 26

C. Imninent and Substantial Endangerment 29

D. Public Comments 30

E. Enforcement Actions 31

1. Negotiation Documents 31

2. PRP-Lead RI/FS 32

3. Administrative Orders and Consent Decrees ... 32

F. Excluded Documents 33

G. Draft Documents and Internal Memoranda . 33

H. Privileged Documents 34

I. Guidance Documents 37

J. Technical Literature 38

K. Legal Sources 39

L. NPL Rulemaking Docket Information 39

M. RCRA Documents 39

N. Post-Decision Information 40

IV. INVOLVEMENT OF OTHER PARTIES 42

A. States 42

1. State Involvement in Federal-Lead Sites .... 42

2. Federal Involvement in State-Lead Sites .... 43

B. Federal Facilities 44

C. ATSDR 45

D. Natural Resources Trustees 45

V. DISCLAIMER 46

VI. FURTHER INFORMATION 46

GLOSSARY 47

APPENDICES

Appendix-A. Sections 113(j)-(k) of CERCLA 50

Appendix B. Model File Structure 52

Appendix C. Model Index 56

Appendix D. Model Position Description for AdministrativeRecord Coordinator 57

Appendix E. Compendium of Response Selection Guidance ... 59

Appendix F. Model Transmittal Cover Letter 85

Appendix G. t Model Document Transmittal Acknowledgement . . 86

Appendix H. Model Fact Sheet 87

Appendix I. Model Notice of Public Availability 88

Appendix J. Microform Approval Memorandum 89

Appendix K. Model Certification 90

Appendix L. Preamble to Subpart I of NCP 91

Appendix M. Subpart I of the NCP 101

OSWER Directive No. 9833. 3A-1

I . INTRODUCTION

A. Purpose and Scope of the Administrative Record

This guidance addresses the establishment of administrativerecords under Section 113 -of the Comprehensive EnvironmentalResponse, Compensation, and Liability Act of 1980 (CERCLA) , asamended by the Superfund Amendments and Reauthorization Act of1986 (SARA).1 Section 113(k)(l) of CERCLA requires theestablishment of administrative records upon which the Presidentshall base the selection of a response action (see Appendix A forthe complete statutory language) .

Chapter I of this guidance introduces the purpose and scopeof the administrative record. Chapter II reviews procedures forcompiling and maintaining the administrative record. Chapter IIIexamines the various types of documents which should be includedin the administrative record. Chapter IV discusses how agenciesoutside EPA are involved in establishing the record. Finally,this guidance includes a glossary of frequently used terms andacronyms as well as several appendices.

Although; this guidance is written for use by the UnitedStates Environmental Protection Agency (EPA), it can be adaptedfor use by state and federal agencies required to establishadministrative records for the selection of CERCLA responseactions.' As used in this, guidance the term "lead agency" meanseither E&>A, a state or other federal agency, which is responsiblefor compiling and maintaining the administrative record. As usedin this guidance, the term "support agency" means the agency oragencies which furnish necessary data to the lead agency, reviewsresponse data and documents and provides other assistance asrequested by the OSC or RPM. This guidance reflects therevisions to the National Oil and Hazardous Substances PollutionContingency Plan (NCP) published on March 8, 1990, 55 Fed. Reg.8859 (see Appendices L and M) .

The administrative record established under Section 113 (k)of CERCLA serves two primary purposes. First, the recordcontain* tho*e documents which form the basis for selection of aresponse action and under Section 113 (j), judicial review of anyissue concerning the adequacy of any response action is limitedto the record. Second, Section 113 (k) requires that theadministrative record act as a vehicle for public participation

1 42 U.S.C. §9613. References made to CERCLA throughoutthis memorandum should be interpreted as meaning "CERCLA, asamended by SARA."


in selecting a response action. This guidance document discussesprocedures developed to ensure that the lead agency'sadministrative records meet these twin purposes.

The administrative record is the body of documents that"forms the basis" for the selection of a particular response at asite. This does not mean that documents which only support aresponse decision are placed in the administrative record.Documents which are included are relevant documents that wererelied upon in selecting the response action, as wellras relevantdocuments that were considered but ultimately rejected (e.g.,documents "considered or relied on") .

This document uses the phrase "considered or relied on" indiscussing which documents should be included in theadministrative record to indicate that it is EPA*s general policyto be inclusive for placing documents in the administrativerecord. However, this term does not mean that drafts or internaldocuments are normally included in.the administrative record.Lead or support agency draft or internal; memoranda are generallynot included in the administrative record, except in specificcircumstances (see section III.0. at page 33).Thus/ the recordwill include final documents generated by the lead and supportagency, as well as technical and site-specific information.Information or comments submitted by the public or potentiallyresponsible parties (PRPs) during a public comment period (evenif the lead agency does not agree'with the information orcomments) are also included in the administrative record (seesection*tlI.D. at page 30). >

- ' •. • \ • \ "• • • • » • . - , . , •

The following principles should be applied in establishingadministrative records:

o " The record should be compiled as documents relating to theselection of the response action are generated or receivedby the lead agency?

o The record should include documents that form the basis forthe decision/ whether or not they support the responseselection;'and • •>.,-"":•• , .• ,r,-;; •. \; ,:o-.•-:,-:.* .'<.„•+•:";:.• "' ;•;

.'-•. .'..•;! ', ,"• :; 'il'.V..-'' ' : : ; ' ' 0-3'V '• " '' '..'•'''!'I '•''>•••••'{")''•. '•'. '•' i' **-.'" t ",-

o The! record should be a contemporaneous explanation of thebasis for the selection of a response action;

The effort to establish adequate administrative recordsencompasses a vast array of people including: AdministraiveRecord Coordinators, Remedial Project Managers (RPMs), On-ScefieCoordinators (OSCs), enforcement staff, records management staff,Regional Counsel staff, Community Relations Coordinators (CRCs),other federal agencies, states, CERCLA contractors, and the


public.2 This guidance will discuss the roles andresponsibilities of these people and how they interact with oneanother.

B. Judicial Review

Section I13(j)(l) of CERCLA provides that judicial review ofany issues concerning the adequacy of any response action shallbe limited to the administrative record.

Judicial review based on an administrative record providesnumerous benefits. Under Section 113(j) of CERCLA and generalprinciples of administrative law, when the trial court reviewsthe response action selected, the court is limited to reviewingthe documents in the administrative record. As a result, factsor arguments related to the response action that challengingparties present for the first time in court will not beconsidered.

Record review saves time by limiting the scope of trials,thereby saving the lead agency's resources for cleanup ratherthan litigation. Courts will not allow a party challenging adecision to use discovery, hearings, or additional fact findingto look beyond the lead agency's administrative record, except invery limited circumstances. In particular, courts generally willnot permit persons challenging a response decision to depose,examine, or cross-examine EPA, state or other federal agencydecisionmakers, staff, or contractors concerning the selection ofthe response action.

Furthermore, the administrative record may be cited longafter officials responsible for the response decisions have movedinto different positions or have left the lead or support agency.Judicial review limited to the record saves time involved inlocating former employees who may not remember the facts andcircumstances underlying decisions made at a much earlier time.

Moreover, in ruling on challenges to the response actiondecision, the court will apply the highly deferential "arbitraryand capricious" standard of review set forth in Section 113(j)(2)of CERCLA. Under this standard, a court does not substitute itsjudgment for that of the decisionmaker. The reviewing court doesnot act as an independent decisionmaker, but rather acts as areviewing body whose limited task is to check for arbitrary andcapricious action. Thus, the court will only overturn theresponse selection decision if it can be shown on the

2 As used hereinafter in this guidance the term "public"includes potentially responsible parties (PRPs).


administrative record, that the decision was arbitrary andcapricious or otherwise not in accordance with the law. However,the extent to which EPA benefits from having judicial reviewlimited to the record depends on the quality and completeness ofeach record.

C. Publir ^icipation

Section 113(k)(2) of CERCLA requires that the public havethe opportunity to participate in developing the administrativerecord for response selection. Section 117 of CERCLA alsoincludes provisions for public participation in the remedialaction selection process.3 Both sections reflect a statutoryemphasis on public participation. Participation by interestedpersons will ensure that the lead agency has considered theconcerns ,pf the public, including PRPs, during the responseselection process. In addition, for purposes of administrativeand judicial review, the record will contain documents thatreflect the participation of the public and the lead agency'sconsideration of the public's concerns.

If the lead agency does not provide an opportunity forinvolvement of interested parties in the development of theadministrative record, persons challenging a response action mayargue that judicial review should not be limited to the record.The lead agency must, therefore, make the information consideredor relied on in selecting a response action available to thepublic, provide an appropriate opportunity for public comment onthis information, place comments and information received fromthe public in the record, and reflect in the record the leadagency's consideration of this information.

II. PROCEDURES FOR ESTABLISHING THE ADMINISTRATIVE RECORD

A. Administrative Record Coordinator

Each region should have an Administrative RecordCoordinator. The Record Coordinator generally has the duty ofensuring that the administrative record files are compiled andmaintained according to Subpart I of the NCP and this guidance.4

3 42 U.S.C. §9617.

4 The "administrative record file" should be distinguishedfrom the "administrative record." The administrative record filerefers to the documents as they are being compiled. Until aresponse action decision has been selected, there is no completeadministrative record for that decision. Thus, to avoid creatingthe impression that the record is complete at any time prior to


The Record Coordinator will not be responsible for deciding whichdocuments are included in a record file. Those decisions shouldbe made by the OSC or RPM, with appropriate consultation of ORCstaff. The Record Coordinator's duties ordinarily include:

o Developing procedures for creating record files;

o Ensuring that the public is notified that the record filesare available for inspection;

o Ensuring that the records are available at or near the site;

o Ensuring that the records are available at the regionaloffice or other central location;

o Coordinating efforts to obtain the necessary documents;

o Indexing the record files;

o Updating the record files and indices on a regular basis(e.g., quarterly);

o Ensuring availability of the record file for copying;

o Ensuring that sampling and testing data, quality control andquality assurance documentation, and chain of custody formsare available for public inspection, possibly at a locationother than that of the record files;

o Coordinating with ORC staff on questions of relevance andconfidentiality of documents submitted for the record files;

o Arranging for production and presentation of the record tocourt when necessary for judicial review;

o Maintaining the confidential portion of the record files, ifnecessary;

o Maintaining the "Compendium of CERCLA Response SelectionGuidance Documents11;

o Coordinating with states and federal agencies on recordfiles compiled by them; and

the final selection decision, the set of documents is referred toas the administrative record file rather than the administrativerecord.


o Notifying appropriate personnel of the timing for review ofstate and federal record files.

Appendix D contains a model position description for anAdministrative Record Coordinator.

The Record Coordinator must work closely with RPMs, OSCs,enforcement staff, records management staff, Regional Counselstaff, community relations staff, and the Department of Justice(DOJ) (for cases in litigation).

If the way the record was compiled and maintained isquestioned in litigation, the Record Coordinator may be calledupon to prepare an affidavit or testify about those procedures.Therefore, the Record Coordinator should be familiar with theprocedure® associated with the record, and be qualified tofulfill the responsibilities outlined above.

M"B. Multiple Response Actions J

In general, every decision document (e.g., Record ofDecision '(ROD) or Action Memorandum) must be supported by anadministrative record. Under CERCLA, cleanups are often brokenup into distinct response actions. At a given site this mayinclude several removal actions, and/or remedial actions known asoperable units. For every removal action or operable unit, aseparate administrative record must be compiled.

Information relevant to more than one response decision,such as a site inspection report or a preliminary assessmentreport may be placed in the record file for an initial responseaction and incorporated by reference in the indexes of subsequentrecord files for that site.

C. Compilation

The administrative record file should be compiled asrelevant documents on the response action are generated orreceived. Thus, all documents which are clearly relevant andnon-privileged should be placed in the record file, .entered intothe index, and made available to the public as soon as possible.For example, the remedial investigation/feasibility study (RI/FS)work plan, summaries of quality assured data, the RI/FS releasedfor public comment, the proposed plan, and any public commentsreceived on the RI/FS and proposed plan should be placed in therecord file as soon as they a,re generated or received.

When there are questions whether particular documents shouldbe included in the record file, such documents can be segregatedand reviewed at regular intervals (e.g., quarterly). For


example, draft documents or documents subject to claims ofprivilege should be set aside for review by ORC and otherappropriate staff. At critical times, such as prior to thepublic comment period, the issues regarding these documentsshould be completely resolved and the documents included in therecord file, if appropriate.

The record file should be updated while it is available forpublic inspection. The additional documents should be placed inthe record file and entered in the index.« Any updates to therecord file should be made to all copies of the record file.

All documents considered or relied on in selecting theresponse action should be in the record file when a decisiondocument (e.g., a record of decision) is signed. Documentsrelevant i?to the response'selection but generated or receivedafter the decision document;is signedi should be placed in a post-decision document 'file and may be added to the administrativerecord file in certain circumstances•-,,(see section III.N. at page40) . ' -. - ..-.OA.V •• , .-

.< " . ' - • • . • . " • . . : ; • . - • • • "'•rfffi "••:. . . : i u ' M ' . ' V , '•• ' A • - -. V''. <• ; . , . ; , , , ; • :

D. Index • ' • ' •• - - •• ' - •• ••• • • " • ' - • ••• - j r . • - . • • , . , , -, . • • • ( \ - , . , ; ~f

• • - ' - • • ' ; = „ ' , > : , ;, ' " : ' . • - ' • . J.

Each administrative 'record' file must be indexed. The indexplays a key role in enabling both lead agency staff and membersof the public to help locate and retrieve documents included inthe record file. In addition, the index can be used for publicinformation purposes or identifying documents located elsewhere,such as those included in the compendium of guidance documents(see Appendix E). The index also serves as an overview of thehistory of the response action at the site.

The index also provides the lead agency with a degree ofcontrol over documents located at or near the site. The creationof an index will prevent persons from altering the record simplyby physically adding or removing documents from the record file.

The index should include the following information for eachdocument: ; , ?

o Document Number; v,> ••» •:•>•.!>;.<&•:.<.-•.• ?.;,. . .- •, . - . . , ; . • . . . > • , . ; .• ••- . • • • • • : . • • . .'...- . ,,•,!.,...(.,,..

o Document Date — date on the document;

o Document Title *• one or two line identification. Identifythe actual document, not a transmittal memo or other lessrelevant document. Include sufficient information so the^document cannot be confused with another (e.g., the title"report" may be insufficient);


o Author - Name and affiliation;

o Recipient - Name and affiliation; and

o Document Location.

The index can be organized either by subject or inchronological order. If documents are customarily groupedtogether, as with sampling data and chain of custody documents,they may be listed as a group in the index to the administrativerecord file. Appendix C contains a model index organized bysubject. Computer databases have been helpful in generating andupdating the index.

The index should be updated when the record file is updated.It is preferable to update the record file when documents arereceived, or at least quarterly. Such updates should coincidewith the periodic updating of the record file and review ofmaterial for which there are questions about relevance or \privilege (see section II.C. at page 6). The index -nould alsobe updated before any public comment period commences. The indexshould be labeled "draft index" until all relevant documents areplaced in the record file. When the decision document is signed,the draft index should be updated and labeled "index."

E. Location

E.I. General'•& \- : .

Section 113(k)(l) of CERCLA requires that the administrativerecord be available to the public "at or near the facility atissue."5 Duplicates of the record file may be kept at any otherlocation. A copy of the record file must be located at theregional office or other central location. Both copies of therecord file should be available for public inspection atreasonable times (e.g., 9-4, Monday-Friday). In the case of anemergency removal, unless requested, the record file needs to beavailable for public inspection only at the central location (seesection II.F.3. at page 14).6

The record file located at or near the site should be placedin one of the information repositories which may already existfor community relations purposes. These are typically located ina library, town hall, or other publicly accessible place. Ifthere is no existing information repository, or if the repository

5 See 40 C.F.R. §300.805.

6 40 C.F.R. §§300.805(a)(5) and (b).


does not have sufficient space for the record file, any otherpublicly accessible place may be chosen to house the recordfile. When a Superfund site is located at or near an Indianreservation, the centrally located copy of the record file may belocated at the Indian tribal headquarters. The CommunityRelations Coordinator (CRC) should be consulted on the locationof the information repository and record file.

The record file should be transmitted to the localrepository in coordination with the CRC. The CRC should make theinitial contact to establish the local repository and requesthousing for the record file. The Record Coordinator should makearrangements for delivering the record file to the localrepository.

The,vrecord file should include an introductory cover letteraddressed to the librarian or repository manager (see AppendixF). In addition, a transmittal acknowledgement form should beincluded to ensure receipt of the record file (see Appendix G).Finally, an administrative record fact sheet should accompany therecord to answer questions from the public (see Appendix H).Updates to the record file should be handled in a similar fashion(see section II.C. at page 6).

In addition to the publicly available record file, iffeasible, a master copy of the record file should be kept at theregional office or other central location of the lead agency. Topreserve the integrity of the master copy of the record file, itshould niot be accessible to the public. If not feasible toestablish a master copy, the lead agency will need to establishan effective security system for the publicly available recordfile. The master copy of the record file may be maintained inmicroform to conserve storage space (see section II.J. at page21)".

E.2. Special Documents

Certain documents which are included in the record file donot have to be maintained at or near the site or, in some cases,at the regional office or other central location, because of thenature of the documents and the burden associated withmaintaining such documents in multiple locations. Thesedocuments, however, must be incorporated in the record file byreference (e.g., in the index but not physically in the record

7 It the site is located at a federal facility whichrequires security clearance, the administrative record file forthat site must be located where security clearance is notrequired. The public must have free access to the record file.


file), and the index must indicate where the documents arepublicly accessible. Where a document is listed in the index butnot located at or near the site, the lead agency must, uponrequest, include the document in the record file at or near thesite.8 This applies to verified sampling data, chain of custodyforms, and guidance and policy documents. It does not apply todocuments in the confidential file.

Unless requested, the following types of documents do nothave to be located in multiple locations:

Verified Sampling Data9

Verified sampling data do not have to be located in eitheradministrative record file. The sampling data may be left in itsoriginal^storage location (e.g., Environmental Services Division(ESD) or contract laboratory). Data summary sheets, however,must be located in the record file. The index must list the datasummary sheets, reference the underlying verified sampling data,and indicate where the sampling data can be found.

Chain of Custody Fbrms10

As with verified sampling data, chain of custody forms donot have to be located in either administrative record file. Thechain of custody forms may be left in the original storagelocation. The index must reference the chain of custody formsand indicate their location.

8 40 C.F.R. §300.805(b).

9 40 C.F.R. §300.805(a)(1). "Verified sampling data" are datathat have undergone the quality assurance and quality controlprocess. "Invalidated sampling data" have been incorrectlygathered or analyzed and will not be part of the record file."Unvalidated sampling data" are data which has not yet undergonethe quality assurance and quality control process. Because it issuperseded by verified data, the unvalidated data are not generallypart of the record files. However, such data may in some cases berelied on in selecting a response action, such as an emergencyremoval where there is no time for verification. Unvalidatedsampling data which are relied on in selecting a response actionshould be included in the record file.

10 40 C.F.R. §300.805(a) (1)

10


Confidential and Privileged Documents11

When a confidential or privileged document is included inthe record file, it should be kept in a confidential portion ofthe record file. The confidential file should be kept in alocked cabinet at the regional office or other central location.It should not be located at or near the site. The index shouldidentify the title and location of the document, and describe whythe lead agency considers it confidential or privileged.Furthermore, the lead agency should summarize or redact thedocument to make available, to the extent feasible, factualinformation (especially if such information is not foundelsewhere in the record file and is not otherwise available tothe public). This summary or redaction should be performed assoon as possible after the determination that a document isprivileged or confidential, and inserted in the portion of therecord file available to the public and included in the index.See also section III.H. at page 34.

17Guidance and Policy Documents*

Guidance and policy documents that are not site specific areavailable in a compendium located in the regional office.("Compendium of CERCLA Response Selection Guidance Documents,"Office of Waste Programs Enforcement, May 1989.) This eliminatesthe need for reproducing copies of frequently used documents foreach site record file. The documents in the compendium need notbe physically included in the record file, but the guidance andpolicy (Documents considered or relied on in selecting theresponse action must be listed in the record file index alongwith their location and availability. See also section III.I. atpage 37 and Appendix E.

Technical Literature13

Publicly available technical literature that was notgenerated for the site at issue (e.g., an engineering textbook),does not have to be located in the regional office or othercentral location or at or near the site. The document must beclearly referenced in the index. However, technical literaturenot publicly available must be physically included in the recordfile at ths regional office or other central location and at ornear the site. See also section III.J. at page 38.

11 40 C.F.R. §300.805(a) (4) .

12 40 C.F.R. §300.805(a) (2) .

13 40 C.F.R. §300.805(a) (3)

11


F. Public Availability

F.I. General

Section 113(k) of CERCLA specifies that the administrativerecord "shall be available to the public." In satisfying thisprovision, the lead agency must comply with all relevant publicparticipation procedures outlined in Sections 113(k) and 117 ofCERCLA. The NCP (see Appendices L and M) contains additionalrequirements on public availability (see also "CommunityRelations in Superfund: A Handbook," October 1988 - OSWERDirective No. 9230.0-3A; "Community Relations During EnforcementActivities," November 3, 1988 - OSWER Directive No. 9836.0-1A).

The^availability of the record file will vary depending uponthe nature of the response action. Different procedures areoutlined below for remedial and removal response actions.

In a^ll cases, the lead agency should publish a notice ofavailability of the;record file when the record file is firstmade available for public inspection in the vicinity of the siteat issue.14 The notice should explain the purpose of the recordfile, its location and availability, and how the public mayparticipate in its development.

The notice should be published in a major local newspaper ofgeneral circulation. , The newspaper notices should be distributedto per'sows'" on the coirfmunity relations mailing list. Thesenotices should also be sent to all known PRPs if they are notalready included on the community relations mailing list. AsPRPs are discovered, the lead agency should add their names tothe community relations mailing list and mail them all thenotices sent to the other PRPs. Publication of the notice shouldbe coordinated with the community relations staff. A copy of thenotice of availability and list of recipients should be includedin the record file. Appendix I contains a model notice ofavailability.

This public notice may be combined with other notices forthe same site, such as a notice of availability of the communityrelations- information repository, if they occur at the same time.In addition to the required newspaper notice, the public can beinformed of the availability of the record file through existingmechanisms (e.g., general and special notice letters, Section104(e) information requests, and the community relations mailinglist). In addition, Headquarters will publish notices in the

14 See 40 C.F.R. §300.815(a) and §§300.820(a)(1) and (b).

12


Federal Register. They will be published quarterly and will listsites where remedial activity is planned.

F.2. Remedial Actions

The administrative record file for a remedial action must beavailable for public inspection when the remedial investigationbegins.15 For example, when,the remedial investigation/feasibility study (RI/FS) work plan is approved, the lead agencymust place documents relevant to the selection of the remedygenerated up to that point in the record file. Documentsgenerally available at that time include the preliminaryassessment (PA,) , the site., investigation (SI) , the RI work plan,inspection reports, sampling data< and the community relationsplan. The lead agency must continue/to" add;. documents to therecord file periodically after they are generated or receivedduring the RI/F.Si process, ^ ,.>,,,/ .,, ,,.„,.,.,_ .t,,, ... . ,,v

The record file must be publicly ayailable both at aregional office or other central location and at or near the site(see section II.E. at page: 8,). ,rln,;addition, the notice ofavailability,;should be..;s'en't,,tp persp s pn the community relationsmailing list, including fall

vknown jttPs. /"'/'_' !"'''/;'

With the completion of the Riyi'S/t^e lead aqency shouldundertake the following public participation procedures:

o, . . PrajDare -pr a|va yz,e.s! the remedial•' • alternatives-./ev lrHajBel of the RI/FS

and proposes a preferred remedial action alternative;

o Make the RI/FS report, and proposed plan available in therecord files both at a regional office or other centra},location and at or near the site;

o Publish in a major local newspaper of general circulation anotice of availability and brief analysis of the RI/FSreport and proposed plan. The notice should include thedates for submission of public comments;

o Mail the notice or copy of the notice to all PRPs on thecommunity relations mailing list;

o Provide a formal comment period of not less than 30 calendardays for submission of comments on the proposed plan. Upon

15 40 C.F.R. §300.815(a).

16 40 C.F.R. §300.805(a) .,

13


timely request the lead agency will extend the publiccomment period by a minimum of 30 additional days. [Note:The lead agency is encouraged to consider and respond tosignificant comments that were submitted before the publiccomment period. Considering early comments providespractical benefits both substantively and procedurally.Early Comments may provide important information for theselection decision, and early consideration provides thepublic (and, particularly, PRPs) with additional informalopportunities for participating in the decisionmakingprocess.];

o Provide the opportunity for a public meeting(s) in theaffected area during the public comment period on the RI/FSand proposed plan;

o Keep a transcript of the public meeting(s) on the RI/FS andproposed plan held during the comment period and include a **»*copy of the transcript in the record file; '

o Prepare a discussion (to accompany or be part of thedecision document) of any significant changes to theproposed plan which occurred after the proposed plan wasmade available for public comment which are reflected in theROD;

o Prepare a response to each of the significant commentssubmitted durintf the public comment period to accompany theROD (see section III.D. at page 30); arid

o Publish in a major local newspaper of general circulation anotice of the availability of the ROD and make the RODavailable to the public before beginning any remedialaction, as required under Section 117(b) of CERCLA.

Comments received after signing the ROD should be placed ina post-decision document file and may be added to the record filein certain situations (see section III.N. at page 40).

F.3. Removal Actions

Section 113(k)(2)(A) of CERCLA requires that the EPAestablish procedures for the appropriate participation ofinterested persons in the development of the administrativerecord for the selection of a removal action. "Appropriate"participation depends on the,nature of the removal, as outlinedbelow.

17 40 C.F.R. §300.430(f)(3)(i)(c).

14


Time-critical Removal Actions

A time-critical removal action is a removal action forwhich, based on the site evaluation, the lead agency determinesthat a period of less than six months exists before on-siteremoval activities must be initiated. This category includesemergency removal actions which are described in greater detailbelow.

The administrative record file for these actions must beavailable for public inspection no later than 60 days after theinitiation of on-site removal activity. Where possible, therecord file should be made available earlier. The record filemust be available both at the regional office or pther centrallocation and at or near the site at issue.

If, however, on-site cleanup activity is initiated withinhours of the verification of a release or threat of a release andon-site cleanup activities cease within 30 days (emergencyactions), the record file need only be available at the regionaloffice or other central location, unless it is requested that acopy of the record file be placed at or near the site.18

For all time-critical removals, a notice of the availabilityof the record file must be published in a major local newspaperand a copy of the notice included in the record file. Thisnotice .should be published no later than 60 days after initiationof on-sjgte removal activity.

A public comment period of not less than 30 days should beheld in appropriate situations. In general, a public commentperiod will be considered appropriate if cleanup activity has notbeen completed at the time the record file is made available tothe public and if public comments might have an impact on futureaction at the site. If a public comment period is consideredappropriate, it should begin at the time the record file is madeavailable for public inspection. Note, however, that even if anaction is completed before the record file is available, therecord fils should be made available to the public. The noticefor the,public comment period may be combined with the notice ofavailability of the record file if they occur at the same time.The notice should be mailed to all PRPs on the community

18 40 C.F.R. §300.805(b).

19 40 C.F.R. §300.415(m) (2) (i) .

20 40 C.F.R. §300.415(m)(2)(ii).

15


relations mailing list. The notice should also be sent to allknown PRPs if they are not already on the community relationsmailing list.

The lead agency must respond to all significant commentsreceived during the public comment period and place the commentsand the responses to them 'in the record file (see section III.D.at page 30) .21 Whether or not the lead agency holds a publiccomment period, comments received by the lead agency before thedecision document is signed and related to the selection of theremoval action must be placed in the record file. Forinformation, including comments, generated or received after thedecision document is signed, see section III. N. at page 40.

Non-Time-Critical Removal !*Actl6ns • - • , /

A non-time-critical removal action is a removal action forwhich, based on tne site/ evaluation, the 1'ead agency determinesthat a planning period of at least sl:x months exists before on- jsite' removal -Activities must be ' ' '' ' • •

^The administrative recdrd f £le f or i a non+time-critical

removal action must be made available foe public inspection whenthe engineering evaluation/cost analysis (EE/CA) is madeavailable for public comment;22 The record file must beavailable a€ the 'regional office or other central location and ator near the/fiitf . A notide of the availability of the f recordf ile mtist "b'e '-ipuBllihlaid'r'lri a m'avjbi?o;l;dcaT':newspaipet»and/a''>copy ofthe notice included In the recc»rd¥f ile . 'The notice should bepublished in a major Jlooal newspaper of general circulation. Inaddition, Headquarters will publish these notices in the FederalRegister. They will be published quarterly and will list siteswhere non-time critical removal activity is planned. Thenewspaper notice should be distributed to persons on thecommunity relations mailing list and placed in the record file.These notices should also be sent to all known PRPs if they arenot already on the community relations mailing list. As PRPs arediscovered, the lead agency should add their names to thecommunity relations mailing list and mail them all the noticessent to the other "PRPa. PjUblicilion of the hot ice ishbuld becoordiniitsd with tfte ommuttity rSlatiohs staff &* A 6opy 6f thenotice pf aviiiabillly should be included in the record file.Appendix I contains a model notice of availability.

21 40 C.F.R. §300.415(m) (2) (iii) .

22 40 C.F.R. §300.1415(m) (4) .

16

*


A public comment period on the EE/CA of not less than 30days must be held so that interested persons may submit commentson the response selection for the record file. Upon timelynotice, the lead agency will extend the public comment period bya minimum of 15 days. A notice of the public comment periodmay be combined with the notice of availability of the recordfile if they occur at the same time. The lead agency mustrespond to all significant comments received during the publiccomment period and place the comments and the responses to themin the record file (see section III.D. at page 30),24

The lead agency is encouraged to consider and respond tosignificant comments that were submitted before the publiccomment period. Considering early comments provides practicalbenefits both substantively and procedurally. Early comments mayprovide .important information for the selection decision, andearly consideration provides the public (and, particularly, PRPs)with additional informal opportunities for participating in thedecision making process.

Comments generated or received after the decision documentis signed should be kept in a post-decision document file. Theymay be added to the record file in certain situations (seesection III.N. at page 40). ,

G. Maintaining the Record

Document room procedures should be established to ensureorderly^public access,to the record files. In establishingpublic access procedures, the security and integrity of therecord files must be maintained at all times.

Each regional office or other central location should have areading area where visitors are able to review the record files.The record file must be available during reasonable hours (e.g.,9-4, Monday-Friday). The public reading area should include,wherever feasible:

o Administrative record files;

o Guidance Compendium (see section III.I. at page 37);

o Access to a copier; and

o Sign-in book.

23 40 C.F.R. §300.415(m) (4) (iii) .

24 40 C.F.R. §300.415(m) (4) (iv) .

17


Controlled access to the files is accomplished by use of avisitor sign-in book. Sign-in books help minimize instances inwhich documents are lost or damaged. They also providedocumentation of the lead agency's efforts to provide publicaccess to the record files. Pertinent information recorded inthe book should include:

o Date of visit;

o Name;

o Affiliation;

o Address;

o Phone number;

o Site documents viewed; and /

o Cost of copied materials (if applicable).

The lead agency may choose not to use sign-in books if thebooks deter the public from reviewing the record files.

Since documents in the record file should be complete,properly organized and legible, the integrity of the record filemust be maintained. If possible, storage and reading areasshould fie supervised to maintain proper security. Documentsshould not leave the'document room or be left unattended. To theextent feasible, the Administrative Record Coordinator shouldcheck the order of the documents after being viewed by the publicto be certain all documents have been returned intact. Thedocuments in the record file should be kept secure, either in alocked room or in locked cabinets.

_

The record file located at or near the site should be ^handled with similar care. If possible, the record file shouldbe treated as a non-circulating reference; it should not leavethe local repository except under supervision. The phone numberof a record file contact should be provided to record file usersand to the manager of the local repository so that problems canbe identified and resolved. This information can be included inan informational fact sheet accompanying the record file (seeAppendix H). In addition, the Record Coordinator should planperiodic reviews of the local record files.

Where the site is a fund-lead or PRP-lead, EPA should retain(in addition to the publicly available record file) a master copyof the record file at the regional office or other central

18


location, if feasible. Where a state or other federal agency isthe lead agency at a site, EPA should assure that the state orother federal agency maintains (in addition to the publiclyavailable record file) a master copy of the record file. Therecord files are permanent records that must be retained.

As to the local repository, the statute and regulations aresilent concerning the duration of public availability of therecord file. The lead agency's primary concern is publicparticipation in development of the administrative record.Following initiation of the response action, public interest inbackground information other than the Record of Decision or RI/FSmay wane. In any event, the statutory provisions for judicialreview and deadlines for filing cost recovery actions provideuseful references for keeping the record file publicly available.See Sections 113(g) and (h) of CERCLA.

Where there is ongoing (or possible) litigation, the recordfile in the regional or other central location should beavailable at least until the litigation is over.

The record file continues to serve as a historical record ofthe response selection, even after the statute of limitations forcost recovery action has passed. Where there is considerablepublic interest, the local repository may wish to keep the recordfile available for public viewing.

H. Confidential FileXf:'' ,

In certain situations, documents in the record file may besubject to an applicable privilege (see section III.H. at page34). To the extent feasible, information relevant to theresponse selection which is contained in a privileged documentshould be summarized or redacted as to make the documentdisclosable and then included in the publicly accessible portionof the record file. The privileged document should be includedin a confidential portion of the record file.25

The Administrative Record Coordinator should maintain aconfidential portion of the record file for privileged documents.These dpQUiMnts should be listed in the index to the entirerecord ££&• and identified as "privileged." The index shouldidentify, the title and location of the privileged document, anddescribe the basis for the asserted privilege.

The confidential portion of the record file should be storedin locked files at the regional office or other central location

25 See 40 C.F.R. §300.810(d).

19


and should'not be located at or near the site. The confidentialportion of the record file should be separate from the publiclyavailable record file to protect against inadvertent disclosure.Each privileged document should be stamped "confidential" at thebottom of each page of the document. Where the material is not awritten document (such as a computer disk or cassette tape) thejacket should be stamped "confidential." A complete list of allmaterials contained in the confidential portion of the recordfile should be maintained by the Record Coordinator. The RecordCoordinator should also maintain a log which will include thetime, date, document name, and will identify persons checking outand returning materials to the confidential file.

As soon as a new record file is established, a routineaccess list for the confidential file should be prepared for eachrecord file. When EPA is the lead agency, this routine accesslist must be approved by the Waste Management Division Directoror the Environmental Services Division Director, and ORC. Onceapproval is given, persons on the list will be able to access theconfidential files through the Record Coordinator. No one shouldhave access to the confidential files other than those identifiedon the routine access list. For state or other federal agency-lead sites, the Regions should take steps to insure that state orother federal agencies develop routine confidential file accesslist procedures.

This policy and procedure for privileged materials does notsupersede any policy^,and procedures established under the Freedomof Information Act (FOIA), 5 U.S.C. §552, and EPA regulationsimplementing FOIA at 40 C.F.R. Part 2. Upon receipt of requestsfor the administrative record file pursuant to FOIA, if therequester is in close proximity to the record file, the leadagency may respond to FOIA requests by telling a requester thelocation and availability of the record file. Decisionsregarding disclosures of materials under FOIA should becoordinated among the various lead agency officials with accessto such materials.

I. Copying

Section 117(d) of CERCLA requires that each documentdeveloped, received, published, or made available to the publicunder Section 117 be made available for public inspection andcopying at or near the site. Under Section 113(k)(2)(B) ofCERCLA, these documents must also be included in theadministrative record file. -Under these provisions of CERCLA,the lead agency must ensure that documents in the record file areavailable for copying, but does not bear responsibility forcopying the documents themselves. Therefore, it is preferable

20


that the record file should be located in a facility whichcontains a copying machine (e.g., a public library).

When the administrative record file is available at afacility at or near the site and copying facilities are availablethere, the lead agency may encourage the requester to make use ofthe copying facilities at that location. If copying of therecord file located at or near the site is difficult for arequesting party, the lead agency may arrange for copying onbehalf of a requester at the regional or other central location.The lead agency may ask that requesters arrange for copying bycontractors or commercial copy centers who then bill therequester directly.

The lead agency should follow the FOIA regulations at 40C.F.R. Part 2, in determining the appropriate charge for copying.Copying fees should be waived for other federal agencies, EPAcontractors or grantees, and members of Congress. The EPAcurrently charges $.20 a page for paper copies as provided in 40C.F.R. Part 2. Reproduction of photographs, microfilms ormagnetic tapes, and computer printouts should be charged at theactual cost to the lead agency.

J. Micrographics

The lead agency may make the administrative record fileavailable to the public in microform.2' Use of micrographics cansignificantly reduce'the space required to store administrativerecord files; In addition; micrographics! can simplify the tasksof reproducing copies of the record file and transmission of therecord files to the local repositories. Any use of micrographicsshould be conducted in an orderly manner consistent with recordsmanagement procedures. If using micrographics to maintain therecord files, the lead agency must provide a micrographic readerat the regional office or other central location to ensure publicaccess to the record file. If a record file is located at ornear the site and micrographics are used, the lead agency mustensure that a micrographic reader at that location is available.

Microform copies of original documents are admissable incourt if created in an organized fashion. The Business Recordsas Evidence Act (28 U.S.C. §1732) specifies that copies ofrecords, which are made "in the regular course of business" andcopied by any process which accurately reproduces the original,are "as admissible in evidence as the original itself." See alsoFederal Rules of Evidence 1003. Since the NCP provides for useof microform, microform copies of administrative record documents

26 See 40 C.F.R. §300.805(c).

21


that are produced in the regular course of business are likely tobe admissible in court.

The Office of Information Resources Management (OIRM) hasgranted approval for rthe use of micrographics in establishingadministrative records (see Appendix J). Any use ofmicrographics should still comply with the remaining provisionsof Chapter 6 of the EPA Records Management Manual (7/13/84).

'• ;.> • • • >: ..;/'!.•••J,:- :, ,••*„'. , ' ; ' . : . • • • • > . .K. Certification ; ;:: :

A certification as to the completeness of.the Administrativerecord must be performed when the record is filed in court.Appendix K contains a model court certification.

. '• .'•'. 1 ! :. i ?.i";:.! v;K.;. .; .;•?' v :; .r<": •• ' • • ' •*:•. , , •

When EPA is the lead/agency such certification should besigned by the Regional(Administrator' s designee r af t*er.. >consultation with ORC. Any certification of ,the record .should bemade by program staff and not legaicstaff. ;The, region may alsochoose to have>?t* i dfflinistratiiye R$Gordf Coordinator certify thatthe record was compiled and maintained in accordance withapplicable agency regulations and guidance. ?Sueh certificationwould attest that the record was compiled in accordance withcurrent agency procedures and would notyaddress the>completenessof the record file.

If a state or other federal agency isrthe lead agency thatagency must cert if yi>that the r »re.cord was i•,compi 1 ed (,?and,';maintainedin accordance with applicable EPA regulations and guidance.After the state or federal agency1 provides this certification,the Regional Administrator's designee should certify as to thecompleteness of the record, as provided in Appendix K-

IHl CONTENTS OF THE ADMINISTRATIVE RECORD

A. Remedial Actions -

The administrative record for selection of a remedial actionshould consist of:

dociHMntS which were considered or relied on to select theaction;qand.':fv\ i/; .•";.;•/,;; •• •. ; - ; : . : « ,,?.:::-;u.,-, • , • , ,•?;.

documents which demonstrate the public's opportunity toparticipate in and comment on the selection of the remedialaction.27

27 See 40 C.F.R. §§300.810 and 300.815.

22


Below is a list of documents that are usually generated whena remedial response action is selected. These documents shouldbe included in the administrative record file if they aregenerated and considered or relied on in selecting the remedialresponse action. Documents that demonstrate the public'sopportunity to participate in and comment on selecting theremedial response action should also be included in the recordfile. Documents not listed below, but meeting the abovecriteria, should be included.

Factual Information/Data

o Preliminary Assessment (PA) report;

o Site Investigation (SI) report;

o Remedial Investigation/Feasibility Study (RI/FS) work plan;

o Amendments to the final work plan;

o Sampling and Analysis Plan (SAP): consisting of a qualityassurance project plan (QA?P) and a field sampling plan;

o Sampling data: verified data during the RI/FS, or any datacollected for previous actions such as RCRA or removalactions which are considered or relied on in selecting theremedial action. Unvalidated data should be included onlyif relied on in the absence of validated data (see note 9 atpage 10) ; ,

o Chain of custody forms;

o Inspection reports;

b Data summary sheets;

o Technical studies performed for the site (e.g., a ground-water study);

o Risk evaluation/endangerment assessment and underlyingdocumentation (see section III.C. at page 29);

o Fact sheet or summary information regarding remedial actionalternatives generated if special notice letters are issuedto PRPs at an early stage of the RI/FS (see "InterimGuidance on Notice Letters, Negotiations, and InformationExchange," October 19, 1987 - OSWER Directive No. 9834.1);

o RI/FS (as available for public comment and as final, ifdifferent); and

23


o Data submitted by the public, including PRPs.

Policy and Guidance

o Memoranda on site-specific or issue-specific policydecisions. Examples include memoranda on off-site disposalavailability, special coordination needs (e.g., dioxin),applicable or relevant and appropriate requirements (ARARs)(to the extent not in the RI/FS), cost effectiveness andutilization of permanent solutions and alternative treatmenttechnologies;

o Guidance documents (see section III.I. at page 37); and

o Technical literature (see section III.J. at page 38).

Public Participation (Include the documents that show the publicwas notified of site activity and had an opportunity toparticipate in and comment on the selection of response action)

o Community relations plan;

o Newspaper articles showing general community awareness;

o Proposed plan;

o Documents sent to persons on the community relations mailinglist and associated date when such document was sent;

o Public notices: any public notices concerning responseaction selection such as notices of availability ofinformation, notices of meetings and notices ofopportunities to comment;

o The community relations mailing list (including all knownPRPs) ;28

o Documentation of informal public meetings: informationgenerated or received during meetings with the public and

28 Individual names and addresses of members of the generalpublic which are on the community relations mailing list shouldnot be included in the public record file. Disclosure of suchinformation may result in a Privacy Act violation (see also sectionIII.H. at page 34) or inhibit the general public from requestinginformation about the site. The lead agency should then placeindividual names and addresses in the confidential portion of therecord file.

24


memoranda or notes summarizing significant informationsubmitted during such meetings;

o Public comments: complete text of all written commentssubmitted (see also section III.D. at page 30);

o Transcripts of formal public meetings: including meetingsheld during the public comment period on the RI/FS, proposedplan, and any waiver of ARARs under Section I21(d)(4) ofCERCLA;

o Responses to significant comments: responses to significantcomments received from the public concerning the selectionof a remedial action; and

o Responses to comments from the state and other federalagencies.

Enforcement Documents (Include if the document containsinformation that was considered or relied on in selecting theresponse selection or shows that the public had an opportunity toparticipate in and comment on the selection of response action.Do not include enforcement documents solely pertaining toliability)

o Administrative orders;

o Consent decrees;.-*'

o Affidavits containing relevant factual information notcontained elsewhere in the record file;

o Notice letters to PRPs;

o Responses to notice letters;

o Section 104(e) information request letters and Section122(e) subpoenas; and

o Responses to Section 104(e) information request letters andSection 122(e) subpoenas.

Other Information

o Index (see section II.D. at page 7);

o Documentation of state involvement: documentation of therequest and response on ARARs, Section 121(f)(i)(G) noticesand responses, a statement of the state's position on theproposed plan (concurrence, nonconcurrence, or no comment at

25


the time of publication), opportunity to concur in theselected remedy and be a party to a settlement (see sectionIV.A. at page 42);

o health assessments, health studies, and public healthadvisories issued by the Agency for Toxic Substances andDisease Registry (ATSDR)(see section IV.C. at page 45); and

o Natural Resource Trustee notices and responses, findings offact, final reports and natural resource damage assessments(see section IV.D. at page 45)

Decision Documents

o Record of decision (ROD): remedial action decision document(including responsiveness summary);

o Explanations of significant differences (under Section117(c)) and underlying information; and

' , • • ', • , • ' , " • . ) • • • - . • . - , . . '

o Amended ROD and underlying information.

The administrative record serves as an overview of thehistory of the site and should be understandable to the reader.Appendix B provides a model file structure for organizing therecord file. Appendix C contains a model index.

B. Removal Actions -

The administrative record for selection of a removal actionshould consist of:

5 o documents which were considered or relied on to select the*J removal action; and

o documents which demonstrate the public's opportunity toparticipate in and comment on the selection of the removalaction, when appropriate.29

Below is a list of documents that are usually generated whena removal response action is selected. These documents should beincluded in the administrative record file if they are generatedand considered or relied on when selecting the removal action.Documents that demonstrate the public's opportunity toparticipate in and comment on the removal response action shouldalso be included in the record file. Documents not listed below,but meeting the above criteria, should be included.

29 See 40 C.F.R. §§300.810 and 300.820.

26


Factual Information/Data

o Preliminary assessment (PA) report;

o Site evaluation (SI) report;

o EE/CA (for a non-time-critical removal action);

o Sampling plan;•• • ' • • ' ' ".''•><(:: ..' ; ', '..'(.!•;•.

o Sampling data: verified data obtained for the removalaction, or any data collected for previous actions such asRCRA or other response:actions which are considered orrelied on in selecting the removal action. Unvalidated datashould be included^ only if,< relied on ;An the absence ofvalidated data (see'note 9 iat page 10);

o Chain of Custody forms; ^ , >. • • • • • '*' ' : '-'i ' i •'•<'. ,'; \ : •(' •;, ' • ..i -, • • •

o Inspection reports; -'v •'ia,-j.^'ji; .' .•-.>„,.<-.-, , '....

o Technical studies performed for the site (e.g.i>' a groundwater study); i

o Risk evaluation/endangerment assessment and underlyingdocumentation; and'- - • • • , . : . < • ' < . > • • • • • • ..,,,>.., .,,,..,... , , , .;.

o Data submitted bysuthe public,, including PRPs.•':%'"' '-•'"' '•' - -•'•''-• &-'.','•>!g.<irl.•:,- ';•'{; ;M'«6'.'-7it''!!O'.? < ; : ' •'' r{,t-A.i :••<-* . .• . ,.'.

Policy and Guidance

o Memoranda on site-specific, or issue-specific policydecisions. Examples include memoranda on off-site disposalavailability, compliance with other environmental statutes,special coordination needs (e.g., dioxin);

; • -'.I ' -I :$"-• V .. • ' .

o Guidance documents' (see section III.I. at page 37); and

o Technical literature (see:section III.J. at page 38).

Public Participation (Include the documents that show the publicwas notified of site activity and had an opportunity toparticipate in the response selection.)

o Community relations plan;

o Newspaper articles showing general community awareness; ,

o Documents sent to persons on the community relations mailinglist and associated date when such documents was sent;

27


o Public notices: any public notices concerning responseaction selection such as notices of availability ofinformation, notices of meetings, and notices ofopportunities to comment;

o The community relations mailing list (including all knownPRPs) ;30

o Documentation of public meetings: information generated orsubmitted during meetings with the public (including PRPs)and memoranda or notes summarizing significant informationsubmitted during such meetings;

o Public comments: complete text of all written commentssubmitted (see section III.D. at page 30);

o Responses to significant comments: responses to significantcomments received from the public concerning the selectionof a removal action; and

o Responses to comments from states and other federalagencies.

Enforcement Documents (Include if the document contains.information that was considered or relied on in selecting theresponse selection or shows that the public had an opportunity toparticipate in and comment on the selection.of response action.Do not Include enforcement documents solely pertaining toliability)

o Administrative orders;

o Consent decrees;

o Affidavits containing relevant factual information notcontained elsewhere in the record file;

o Notice letters to PRPs;

30 Individual names and addresses of members of the generalpublic which are on the community relations mailing list shouldnot be included in the public record file. Disclosure of suchinformation may result in a Privacy Act violation (see also sectionIII.H. at page 34) or inhibit the general public from requestinginformation about the site. The lead agency should then placeindividual names and addresses in the confidential portion of therecord file.

28


o Responses to notice letters;

o Section 104(e) information request letters and Section122(e) subpoenas; and

o Responses to Section 104(e) information request letters andSection 122(e) subpoenas.

Other Information

o Index (see section II.D. at page 7);

o Documentation of state involvement (see section IV.A. atpage 42);

o ATSDR health assessments, health studies, and public healthadvisories (see section IV.C. at page 45); and

•W o Natural Resource Trustee notices and responses, findings offact, final reports and natural resource damage assessments(see IV.D. at page 45).

Decision Documentsy

o EE/CA Approval Memorandum;

o Action Memorandum;

o Amended Action Memorandum; and

o Other documents which embody the decision for selection of aremoval action.

v

The administrative record serves as an overview of thehistory of the site and should be understandable to the reader.Appendix B provides a model file structure for organizing therecord file. Appendix C contains a model index.

C. Imminent and Substantial Endangerment

Und t Section 106 of CERCLA, the EPA may find the existenceof an imjSaMaat and substantial endangerment to the public healthor welfare or the environment because of an actual or threatenedrelease of a hazardous substance.

Determining the existence of an imminent and substantialendangerment is an important -component in selecting the responseaction. Therefore, all documents considered or relied on inmaking that determination, including any risk assessment, and itssupporting documentation, must be included in the administrative

29


record file.31 If there is proper documentation of thedetermination of an imminent and substantial endangerment in therecord file, judicial review of that determination in an actionunder Section 106 of CERCLA should be limited to theadministrative record.

D. Public Comments

The administrative record file should document the public'sopportunity to be involved in selecting a response action. Thiscan be accomplished by including in the record file all documentsrelated to the opportunity to participate (e.g., notices and factsheets), and relevant written comments and information submittedby the public (e.g., reports and data).

Pub-tic requests for information (e.g., Freedom ofInformation Act (FOIA) requests for copies of reports), need notbe included in the record file.

The1lead agency should request that substantive oralcomments (either in person or over the phone) be put in writingby the commenter and submitted to the record file. The commentershould be advised that the obligation to reduce the comment towriting rests with the commenter. The lead agency, however, mayreduce it to writing where the lead agency will want to rely onthe comment.

The; lead agency may respond to comments received prior to apublic comment period in various ways, depending on the natureand relevance of a particular comment. The lead agency'sconsideration of such a comment may be in the form of a writtenresponse, or reflected by documented actions taken afterreceiving the comment, or even by changes in subsequent versionsof documents. If the lead agency prepares a written response toa- comment, the comment and response should be included in therecord file.

The lead agency may notify commenters that commentssubmitted prior to a formal public comment period must beresubmitted or specifically identified during the public commentperiod in order to receive formal response by the lead agency.Alternatively, the lead agency may notify a commenter that thelead agency will respond to the comment in a responsivenesssummary prepared at a later date. The lead agency, however, has

See "Guidance on Preparing Superfund Decision Documents:The Proposed Plan, The Record of Decision, Explanation ofSignificant Differences, ROD Amendment,'* OSWER Directive No.9355.3-02, June 1989.

30


no duty to respond to any comments received before the formalpublic comment period, or to respond to comments during thepublic comment period until the close of the public commentperiod.

The lead agency, however, is encouraged to consider, respondto and include in the record file significant comments that weresubmitted before the public comment period. Considering earlycomments provides practical benefits both substantively andprocedurally. Early comments may provide important informationfor the selection decision, and early consideration provides thepublic (and, particularly, PRP's) with additional informalopportunities for participating in the decision making process.32

All comments received by the lead agency during the formalpublic comment period are to be included in the record file intheir original form, or if not feasible, an explanation should beplaced in the record file explaining why such comments were notincluded. Comments received during the formal public commentperiod must be addressed in the responsiveness summary (includedwith the ROD in remedial response actions). The responses may becombined by subject or other category in the record file.

Comments which are received after the formal comment periodcloses and before the decision document is signed should beincluded in the record file but labeled "late comment." Suchcomments should be handled as postrdecision information (seesection III.N. at page 40).

*" • : • - : • - , • . . , - . ,

Comments received after the decision document is signedshould be placed in a post-decision document file. They may beadded to the record file in limited circumstances (see sectionIII.N. at page 40).

E. Enforcement Actions

The same procedures should be used for establishing anadministrative record whether or not a response action isselected in the context of an enforcement action. The followingadditional information, however, may assist the lead agency wherethere is enforcement activity.

E.I. Negotiation Documents

During negotiations with the lead agency, a potentiallyresponsible party (PRP) may produce documents and claim that they

32 See 40 C.F.R. §§300.815(b), 300.825(a)(2) and (b)(2).

31


constitute' confidential business information (CBI) or offers ofsettlement subject to Rule 408 of the Federal Rules of Evidence.

Generally, those documents are not part of theadministrative record for response selection unless they aresubmitted by PRPs for consideration in selecting a responseaction and are considered or relied on in selecting the responseaction. A privileged document which was considered or relied onin selecting the response action should be placed in theconfidential portion of the record file. Such a document shouldbe summarized and the summary included in the publicly accessibleportion of the record file (see section II.H. at page 19). Ifthe information cannot be summarized in a disclosable manner, theinformation should be placed in the confidential portion of therecord file only and listed in the index to the file.

'$E.2. PRP-Lead RI/FS

Where a PRP is conducting the RI/FS, the PRP must submit all >technicail information on selection of the remedial actiongenerated during the RI/FS to the lead agency. Technicalinformation includes work plans, sampling data, reports, andmemoranda. The lead agency, and not the PRP, will establish andmaintain the administrative record file (see "Interim Guidance onPotentially Responsible Party Participation in RemedialInvestigations and Feasibility Studies," May 16, 1988, OSWERDirective No. 9835.la and "Model Administrative Order on Consentfor Remedial Investigation and Feasibility Study," January 30,1990, OS%ER Directive No. 9835.10.)

PRPs may be delegated responsibility for some record filemaintenance activities, such as housing the files at or near thesite. PRPs cannot, however, be responsible for decisions on whatdocuments comprise the record file, because of, among otherthings, the potential for a conflict of interest.

E.3. Administrative Orders and Consent Decrees

Final administrative orders and consent decrees issued priorto selection of the response action (e.g., ordering a PRP toconduct the RI/FS), should be included in the administrativerecord file. Administrative orders or consent decrees issuedafter ths signing of the ROD or the action memorandum should notbe included in the record file, unless the consent decree oradministrative order meets the criteria for the inclusion ofpost-decision documents in the record file (see section III.N. atpage 40). Drafts of administrative orders and consent decreesshould not be included in the record file, unless the draftscontain factual information that was considered or relied on andis not found elsewhere in the record file.

32


The issues relating to administrative records foradministrative orders and de minimis settlements are notaddressed by this guidance.

F. Excluded Documents

Certain documents should not be included in theadministrative record file because they are irrelevant to theselection of the response action. Documents should be excludedfrom the record file if they were hot considered or relied on inselecting the response action.

Material beyond thd'scope bf>the record file should be keptin separate files maintained at the' regional office or othercentral location. These files need not be made publiclyavailable, alttibUgh''ftiany' off'the documents in the files may beavailable to the' pultiHc'-if> requested under FQlAv

•'•'•'' it.-1 'M'-ai'.rju'.Q1 '.'•• l - A ;,'•;.>* \j]f, -<.\-_-\ ;A!-,:. • ;;•

Examples |6f documents that are irrelevant to the decision onselecting a respprtsa action may'include Hazard Ranking' System(TOSV'icbrih . work Assignments, costdocumentatibh (as'1 bppbsed ttb cost 'effectiveness 'information) , andNational Priorities List (NPL) deletidtv information., If,however, these documents contain information that is consideredor relied on iiii the responseactibtts'seTection and is notcontained el'i where in the record file,1 then the documents shouldbe included ill; the record £ile;: "••'/.

. .U ;'i".v. -/£.£• .VKv,<,y;.;-;-;!,-'.iA..Y:H.-; .,.-:= !<( . ;•:?:.;/ ,: n,;,;i, ••:,,>. i,-\-•-..-. . •-. •< •'.*-'<'' Informatiohi e arding1 PRP! liability is generally notincluded in the record file"ifor selection of the response actionexcept to the extent such information' (typically.substancespecific) is considered or relied on in selecting the responseaction. Documents relating to PRP liability, however/: should be•compiled and maintained in the regional office or other centrallocation so that they are available at the time of notice to PRPsor referral of any litigation.

. . :.•'•••.• vV ; ;1;-s''vr r.O.,;.'•;' ••'.' -.•'// . , -•.;; <,,,;ri .-,

G. Draft Documents and Internal Memorandaf .(;v[v -. (•/ ''.•'''.',- r'fH ;.'.;.'. fA ' *!.•«:" >,;.".'-or •••> ••//'ti, '

In general, only final documents should be dncluded in theadministat«tlveytecoM«fi3:e*tj Thefet?ecord file^shouldjmot includeprel imihaafy documents suoh! as drafts and ^ internal memoranda.Such documents are excluded from the record file because draftsand internal memoranda are often revised or superseded bysubsequent drafts and memoranda prior to the selection of theresponse action. The preliminary documents are, therefore, notconsidered or relied on in making the response action decision.

Drafts (or portions of them) and internal memoranda shouldbe included, however, ihthreeyInstances; /First, if a draft

33


document or internal memorandum is the basis for a responsedecision the draft document or internal memorandum should beplaced in the record file. This may occur if the draft containsfactual information which was relied on but is not included in afinal document, a final document does not exist, or a finaldocument did not exist when the response decision was made.

Second, if a draft document or internal memorandum iscirculated by the lead agency to other persons (e.g., the supportagency, PRPs or the general public) who then submit commentswhich the decisionmaker considers or relies on when making aresponse action decision, relevant portions of the draft documentor the memorandum and comments on that document should beincluded in the record file.

Third, if a draft document or internal memorandum explainsor conveys decisions on the procedures for selecting the remedyor the substantive aspects of a proposed or selected remedy(e.g., the scope of a site investigation or the identification ofpotential ARARs), the document should be placed in the recordfile, even though the document was signed by a person other thanthe Regional Administrator and generated long before the decisiondocument was signed. .

Examples of internal memoranda and staff notes which shouldnot be included in the record file are documents that expresstentative opinions or internal documents that evaluatealternative viewpoints. Recommendations of staff to other staffor management should also not be included in the record file,except for those staff recommendations which ultimately embody afinal decision relevant to response selection. Drafts andinternal memoranda may also be subject to claims of privilege(see section III.H., below).

H. Privileged Documents

Some documents in the administrative record file may beprotected f.rom public disclosure on the basis of an applicableprivilege. Any documents which are considered or relied on ina response action selection, but withheld from the public portionof the record file based on privilege, must be placed in aconfidential portion of the record file (see section II.H. atpage 19).

If a document is excluded from the public portion of therecord file based on privilege, the relevant information should,to the extent feasible, be extracted and included in the public

33 See 40 C.F.R. §300.810(c).

34


record file. This can often be accomplished by deleting orredacting the privileged information from the document.

The privileges discussed below may be asserted with respectto documents that are considered or relied on in the selection ofa response action. The head of the office responsible fordeveloping the document in question should assert the privilege.In all cases, the official asserting a privilege should consultwith ORC.

Public disclosure of a privileged document may result inwaiver of the privilege, although the nature and extent of thewaiver will depend on the privilege asserted and thecircumstances of the disclosure. If the privilege is waived andthe document becomes a public document, it must be disclosed toany requester. In light of the potential for waiver, it isimportant that personnel not release potentially privilegeddocuments to any party without consulting with ORC.

. • •Deliberative Process

The deliberative process privilege applies to pre-decisional, deliberative communications that express opinions,advice, and 'recommendations of staff to other staff ormanagement. The privilege functions to encourage the honest andfree expression of opinion, suggestions and ideas among thoseformulating policy for government agencies (see "Guidance forAssertion of Deliberative Process Privilege," 10/3/84).

V..«;•In general, if a document contains factual information

forming the basis for the selection of the response action, thefactual portion should be included in the record file.

Use of the deliberative process privilege should be balancedwith the statutory mandate of including the public in theresponse action selection process. The privilege should beasserted if disclosure of the document will have an inhibitingeffect on frank and open discussion among government staff anddecisionmakers. Documents should not be withheld solely becausethey would reveal flaws in the case or information embarrassingto the government. Specific procedures exist for assertion ofthe deliberative process privilege, which include consulting withORC.

Confidential Business Information (CBI)

The EPA must withhold from the public record trade secretsand commercial and financial information that is subject toprotection under 40 C.F.R. Part 2. However, Section 104(e)(7) ofCERCLA greatly restricts the assertions of confidentiality claims

35


by PRPs at CERCLA sites. The decisionmaker should attempt toavoid using CBi in making response action decisions and can do soin most cases by using other information instead. Where thedecisionmaker must use CBI in making its decision, 40 C.F.R. Part2 and Section 104 (e) (7) of CERCLA will apply and such informationshould be placed in the confidential portion of theadministrative record file.

Attorney Work Product

This exclusion applies to documents prepared in anticipationof possible litigation. The work product privilege covers alldocuments prepared by ah1 attbrney or under an attorney'ssupervision, ih'pluding repbrts' prepared by a consultant orprogram employee, Liti atiiori heed not* have commenced (but it mustbe reasonably, cpritemplated'. These documents generally relate toenforcement or 'defensibili y of a decision and! are not; consideredor relied on in selecting a response action. These documentsshould not, therefore, be in the administrative record file.

' , . • • ; - • • •''•;."• fl • v - • •'. .>/..,• > • • < • . .Attorney;-Client Communication

/ ' '''•••••• v:/;' ^.<*.! •:••<!. '.M',' .'.•,:,>. ,>•:, ,q, _ • ,;•••. .*.- • ...... . , , , - -

The attprney>-client privilege applies to confidentialcommunications/made in conriectCbn with securing or renderinglegal adyicei The privilege' is limited to communications wherethere was an ih^entiion to' keep the information cPrtfidential.

' '" - * •

Personal, .This exemption1 cbvers information about individuals in

personnel, medical, and similar files, the disclosure of whichwould constitute a clearly unwarranted invasion of personalprivacy. The records must pertain to an individual, and not abusiness, to be excluded from the public portion of theadministrative record file under this exemption. Often,information subject to this i protection under the personal privacyprivilege can be redacted from the document and the redactedversion can be placed in the public portion of the record file.

state Secretfs';/ . ;' ':v<\:, /'};/. ,, :.:';'"./ f , '';'"'..• r'':-f^ • , • . . ! . • . ' • • _ «•!-

Thi1 lead agehby ii' author i zed to exc lude from pub liescrutiny information which, if released, would harm nationalsecurity or interfere with the government's ability to conductforeign relations. This privilege could be particularlyimportant where the PRP is a federal agency or a contractor for afederal agency. In the case of a federal facility cleanup, am

See 40 C.F.(R. §300.8iO(d) .

36


Inter-Agency Agreement should spell out procedures for assertingthis privilege.

Confidential Informant

Statements obtained from witnesses who have been grantedconfidentiality may be privileged.

Information Exempted by Other Statutes

Information specifically exempted from disclosure by afederal statute need not be part of the public record. Thestatute in question must leave no discretion as to therequirement that matters be withheld from the public, or it mustestablish particular criteria for withholding or refer toparticular types of matters to be withheld.

- , , i i , _ . . ^

I. Guidance Documents

Guidance documents, or, portions of guidance documents, thatare considered or relied on in selecting a response action shouldbe included in the administrative record file for that responseaction. Any guidance documents generated to address issues thatspecifically arise at the /site for which the record file is beingcompiled should be physically included in the record file.Certain guidance documents, however, do not have to be kept inthe record file. Guidance documents not, generated for theparticular site,for which the record is being compiled may bekept in A® compendium M3f guidance documents maintained at theregional office or other central location.35

Each Region should maintain a compendium of guidancedocuments which are frequently used in selecting responseactions. As with an administrative record file, the compendiumof guidance documents must be available to the public, but onlyat the regional office or other central location. The recordfile located at or near the site should contain an index to thecompendium of guidance documents. The Administrative RecordCoordinator should maintain and update the compendium of guidancedocuments. If a guidance document maintained in the compendiumis considered or relied on when making a responseractiondecision, the index to the record file must list the document andindicate its location and availability. See also Appendix E.

If a guidance document is listed in a bibliography to adocument included in the record file (e.g., listed in thebibliography to the RI/FS), it need not be listed again in the

35 See 40 C.F.R. §300.805(a) (2)

37


index to the record file. Tn this case, however, the index muststate that documents listed as bibliographic sources might not belisted separately in the index.

If a guidance document which is not included in the guidancecompendium is considered or relied on in selecting the responseaction, the document should be physically included in the recordfile.

J. Technical Literature

Technical literature generated for the site at issue shouldbe physically included in the administrative record file for thatsite, whether or not it is publicly available.

Similarly, technical' literature not specifically generatedfor the site which is not publicly available should also beincluded in the site-specific record file. Such documentsinclude technical journals and unpublished documents that are notavailable through the Library of Congress or not circulated totechnical libraries.

Publicly available technical literature not generated forthe site, however, need not be located at or near the site or atthe regional office or other central location if the documentsare referenced in the index to the record file. Thesedocuments do hot have to be physically included in the recordfile, unless requested, because they are already available to thepublic. *CPpy ing such 'documents creates a'significant burden tothe lead agency and copyright laws may pose additional barriersto such copying. Examples of publicly available technicalliterature include engineering manuals, groundwater monitoring orhydrogeology textbooks, ATSDR toxicological profiles, andarticles from technical journals.

If technical literature is listed in a bibliography to adocument included in the record file (e.g., listed in thebibliography to the RI/FS), it need not be listed again in theindex to the record file. In this case, however, the index muststate that documents listed as bibliographic sources might not belisted separately in the index.• .K~~ ,.

Computer models and technical databases need not bephysically included in the record file but should be referencedin the index to the record file and made available upon request.Printouts or other documents .produced from the models anddatabases should be physically included in the record file if

36 See 40 C.F.R. §300.805(b) (3) .

38


such documents contain information which was considered or reliedon in selecting the response action.

K. Legal Sources

Copies of statutes and regulations cited in documentsincluded in the record file need not be included in the recordfile if they are readily available to the public. For example,the NCP and other regulations are easily accessible since theyare published in the Federal Register and the Code of FederalRegulations (C.F.R.).

Copies of the actual standards (statutes or regulations)comprising federal and state ARARs should be physically includedin the record file if they are not easily accessible. Also,other federal and state criteria, advisories, and guidancedocuments pertinent to the site (e.g., what the EPA refers to as"TBCs," or standards "to be considered"), may not be easilyaccessible. If such documents,are cited in an RI/FS, appendix tothe RI/FS, EE/CA, or ROD, those advisories which are not readilyavailable should be included in the record file.

L. NPL Rulemaking Docket Information

Generally, information included in the National PrioritiesList (NPL) rulemaking docket, such as the Hazard Ranking System(HRS) scoring package and comments received on the listing, neednot be included in the record file for selection of a responseaction. &The NPL docket contains information relevant to thedecision to list a site, which may be irrelevant to the decisionon response action selection.

Documents in the NPL docket which contain sampling data orother factual information which was considered or relied on inselecting a response action should be included in the record fileif the information is not available already in the record file.Such information may include early sampling data taken by partiesother than the lead agency or its contractors (e.g., a State).

M. RCRA Documents

If mm action is taken under CERCLA at a site with a historyof Resource Conservation and Recovery Act (RCRA) activity, muchof the information relating to those RCRA activities may beconsidered or relied on in making the CERCLA response actionselection. Any relevant RCRA information, particularlyinformation on waste management and RCRA corrective action at thesite, should be included in the administrative record file (e.g.,RCRA permit applications, inspection reports, RCRA FacilityAssessment (RFA), RCRA. Facility Investigation (RFI), Corrective

39


Measures Studies (CMS), or responses to RCRA informationrequests).

Not all pre-existing RCRA information will be considered orrelied on in selecting a CERCLA response action, but informationon types of wastes, quantity of wastes, and observations ofpotential threats gathered during RCRA investigations generallywill be considered and thus should be included in the recordfile.

N. Post-Decision Information

In all cases, documents generated or received after signingthe decision document should be kept in a post-decision documentfile. This file is not part of the administrative record fileand should be maintained only at the regional office or othercentral "location.

In general, post-decision documents should not be added to /\~the administrative record file. Since the record file containsthe information which was considered or relied on in selectingthe response action, documents generated or received afterselecting the response action are not relevant to that responsedecision and should not be included in the record file. Suchdocuments may, however, be relevant to later response selectiondecisions and, if so, should be included in the record filepursuant to Section 300.825 of the NCP.

-'"• l* i ' ' '" : '''... .'.'t . . . • . : • i ' •

' "'Documents kept'*&h the post-decision document file may beadded to the record file in the situations described below:

o Where a decision document does not address or reserves aportion of the decision to be made at a later date.37 Forexample, a decision document that does not resolve the typeof treatment technology. In such cases, the lead agencyshould continue to add documents to the record file whichform the basis for the unaddressed or reserved portion ofthe decision;

o Where there is a significant change in the selected responseaction. Changes that result in a significant differenceto » basic feature of the selected remedial action (e.g.,timing, ARARs), with respect to scope, performance, or cost

37 4.0 C.F.R. §300.825(a) (1) .

38 40 C.F.R. §300 .825(a ) (2 ) . See 40 C.F.R. §300.435(c) (2) (i) .

40


may be addressed in an explanation of significantdifferences. Section 117(c) of CERCLA states:

[a]fter adoption of a final remedial action plan -(1) if any remedial action is taken, (2) if anyenforcement action under section 106 is taken, or(3) if any settlement or consent decree undersection 106 or section 122 is entered into, and ifsuch action, settlement, or decree differs in anysignificant respects from the final plan, thePresident or the State shall publish anexplanation of the significant differences and thereasons such changes were made.

The record file should include the explanation ofsignificant differences, underlying documentation for theresponse action changes, any significant comments from thepublic, and the lead agency responses to any significantcomments. A formal public comment period is not requiredfor an explanation of significant differences;

Where the changes are so significant that they fundamentallyalter the very nature or basis of the overall responseaction. Such changes will require an amended decisiondocument. The Region will decide whether a change to aresponse action is considered a significant or a fundamentalchange for purposes of addressing the change (see Chapter 8of "Interim Final Guidance' on Preparing Superfund DecisionDoqpments: The?Proposed Plan<and Record of Decision," June1989, OSWER Directive No. 9355.3-02).

When the decision document is amended, the amended decisiondocument, the underlying documentation, any significantcomments from the public, and the lead agency's responses toany significant comments, should be included in the recordfile. ROD amendments will require a formal public commentperiod;

Where comments containing significant information aresubmitted by interested persons after the close of thepublic comment period. The lead agency must consider suchcomments only to the extent that the comments containsignificant information not contained elsewhere in therecord file which could not have been submitted during thepublic comment period and which substantially support the

39 40 C.F.R. §300.825(a) (2) .

40 40 C.F.R. §300.435(C) (2) (ii) .

41


need >to significantly alter the response action.41Documents meeting this \test should be included,. in the recordfile, along with the lead agency's responses to thesignificant comments, whether or not such informationresults in a change to the selected decision. In this case,the comments and the 'lead agency responses to such comments,including any supporting documents, should be included inthe record file; and ,

•' • : • i < '• '•>;>'• '•'•'• .

o Where the lead agency holds public comment periods after theselection of the, response action. The lead agency mayhold additional public comment periods or extend the timefor submission r of tvPUbliCijCpmment on any issue concerningresponse selection. Such comment should be limited to theissues •• for. /which |j-&e e.<!id|.vagj 3icyl,!eregu§91J;edv additionalcomment. All /comments res'ppns.iveV tb/tfce : request submitted

- during suchj ttpmment^periiods^^ noticesof the commenfei->pe.rib(d fVtfanspripts.|b pufa. i Greetings, andlead agency responses to i the i pomments, should be placed in ythe^record: file..,-;.;- 4.-;u.>Yr-. a

v:a we./ i:::i-&t';.&,f !•••$&• s?,\. -'.o'si

IV. INVOLVEMENT OF OTHER! PARTIES, , ,,

A. States s , , , f0 ,

A.l. State Involvement in Federal -Lead Sites

ref lect^he state-f sjA.oppor|3;unit.y'w|itp, be theresponse action. The, •.r.ep.prd\j if pr<;..a ;r medial"Jactibn;;: should includedocuments that reflect at least the following state participationor the opportunity for state participation,: ,

' .;'"(A-iV;-;!-A •;•..; • •/ v , .,-,;,. ... ,.. . ...

o * Letter to state requesting identification of ARARs and thefinal response from state identifying ARARs (andcertification from the state) ;

o Comments, or the opportunity to comment, on a proposedfinding i or decision to select a response action notattaining a level or standard of control at least equivalent

• to a state ARAR; ^riT

41 40 C.F.R. §300.825(c).

42 40 C.F.R. §300.825(b).

43 See also Section 121 (f)n of CERCLA

42


o Comments, or the opportunity to comment, on the final draftRI/FS, the proposed plan and EPA responses to the comments;

o Significant post-decision comments by the state and EPAresponses to the comments (place in the post-decisiondocument file for possible inclusion in the record file -see section III.N. at page 40).

The administrative record for a removal action shouldreflect any state participation, especially any state commentsand EPA responses to the comments.

The record file should only include final state comments,unless the comments explain or convey decisions on substantiveaspects of a proposed or selected remedy (e.g., the scope of aproposed action or the identification of potential ARARs). Anypreliminary deliberations between the state and EPA relevant tothe response selection need not be part of the record file ifsuperseded by documentation of the state's final position.

The governing body of an Indian tribe should be afforded thesame treatment as a state in accordance with Section 126 ofCERCLA.

A. 2. Federal Involvement in State-Lead Sites

Where a state has been officially designated the lead agencyfor a CERCLA site, the state must compile and maintain the'administrative record for that site in,accordance.with Section113(k) of CERCLA and Section 300.800 of the NCP. Since EPA hasultimate responsibility for both the selection of a responseaction (e.g., EPA signs the ROD) and the record on which thatresponse action is based, EPA must participate in compiling andmaintaining the record. In such cases, EPA must assure that therecord file forms a complete basis for the selection of theresponse action.

The state as lead agency must maintain the record file at astate office (e.g., the state's central environmental agencyoffice) and at or near the site. At a minimum, the state as leadagency also must transmit a copy of the index, the RI/FS workplan, th* Rt/FS released for public comment, the proposed plan,and any public comments received on the RI/FS and the proposedplan to the appropriate EPA Regional office. These documentsshould be transmitted to EPA as they are generated or received.Transmittal of the index will not suffice. In addition, otherdocuments may be requested by EPA on a case-by-case basis.

44 See 40 C.F.R. §300.800(C).

43


The Superfund Memorandum of Agreement (SMOA), or CooperativeAgreement (CA), must address the administrative recordrequirements. The following language should be included in theSMOA or CA where the state has been officially designated thelead agency for a CERCLA site:

The state must compile and maintain the administrativerecord upon which the selection of the [remedial,removal] action is based. The compilation andmaintenance of the record must follow 40 C.F.R. Part300, Subpart I and EPA guidance on the administrativerecord. The administrative record must be located atthe state [environmental agency] office, and at or nearthe site. In addition, the state must submit copies ofthe/ index, the RI/FS workplan, the RI/FS released forpublic comment, the proposed plan, and any publiccomments received on the RI/FS and proposed plan to theEPA Regional office, as they are added to theadministrative record file. In addition, the statemust submit other documents that are requested by EPA.Th4 state shall comply with section 113 of CERCLA andany applicable regulations. EPA may require theretention of other documents for cost recoverypurposes.

The record file compiled by the state should reflect EPA'sparticipation, comments, concurrence, and disagreements at thesame stlges as are''required for state involvement in a federal-lead site. The state must place in the record file any documentssubmitted by EPA for inclusion in the record file.

B. Federal Facilities

Federal agencies have the responsibility, pursuant toExecutive Order 12580, to establish the administrative record forfederal facilities under their jurisdiction, custody, or controlwhere using CERCLA authority for a response action. The recordfile for a federal facility must include all documents consideredor relied on in selecting a response action, including documentssubmitted by EPA on the selection of the response action. Thefederal*agency must comply with all NCP (see Appendix M) andCERCLA requirements in compiling and maintaining the record,including the minimum public participation requirements inSections 113 and 117 of CERCLA.45

45 See 40 C.F.R. §300.800(b).

44


The federal agency must maintain the record file at or nearthe site and ensure easy public access to the record file. If,for example, a site is a Department of Defense facility, therecord file should be housed in a location which does not requiremilitary clearance for access. The federal agency should keep acomplete copy of the record file at a location within the federalagency office comparable to an EPA Regional office.

At NPL sites and any other site where EPA is involved inselecting a response action at a federal facility, EPA mustparticipate in compiling and maintaining the record. In suchcases, EPA must assure that the record file forms a completebasis for the selection of the response action. At a minimum,the federal agency must transmit a copy of the index, the RI/FSworkplan, the RI/FS released for public comment, the proposedplan, and any public comments received on the RI/FS and proposedplan to the appropriate EPA Regional office. These documentsshould be transmitted to EPA as they are generated. Transmittalof the index will not suffice. In addition, other documents maybe requested by EPA on a case-by-case basis. Inter-AgencyAgreements (lAGs) should spell out procedures for compiling andmaintaining the record.

C. ATSDR

Participation in the selection of a response action by theAgency for Toxic Substance and Disease Registry (ATSDR) should bereflected in the administrative record. The record file mustinclude the initial and subsequent health assessments and anyother information EPA solicits and obtains from ATSDR which EPAconsiders or relies on in its selection of a response action.

Draft versions of the health assessment and other draftdocuments upon which ATSDR comments should not be included in therecord file. If, however, EPA solicits comments from ATSDR on adraft document such as a draft work plan or RI report, andreceives formal comments from ATSDR which EPA considers or relieson in selecting a response action, then the document and commentsshould be included in the record file.

In the event that the ATSDR health assessment and EPA's riskassessment appear inconsistent, a document explaining thedifference should be generated and placed in the record file.

D. Natural Resources Trustees

Section 122(j)(l) of CERCLA requires that the EPA givenotice to the Natural Resources Trustee of a release orthreatened release of any hazardous substance which may haveresulted in damages to natural resources. The administrative

45


record file must include the notice to the Natural ResourcesTrustee, and any subsequent final communications (e.g., a releaseor final report). In addition, any factual information providedby the Natural Resources Trustee which is considered or relied on .in selecting a response action should be included in the recordfile.

In the event that the Natural Resources Trustee's damageassessment and EPA's risk assessment appear inconsistent, adocument explaining the difference should be generated and placedin the record file.

V. DISCLAIMER ;

The policies and procedures established in this document areintended^solely for the guidance of employees of the U.S.Environmental Protection Agency, They are not,intended andcannot be relied upon to create any rights, substantive orprocedural, enforceable by any party in litigation with the v^United States. EPA reserves the right to act at variance withthese policies and procedures and to change them at any timewithout public notice.

VI. FURTHER INFORMATION

For further information concerning this memorandum, pleasecontact-Gary Worthman in the Office, of Waste Programs Enforcementat FTS $202) 382-5646. •. ,tr

46


GLOSSARY

Administrative Record: as used in this guidance, the body ofdocuments that were considered or relied on which form the basisfor the selection of a response action.

Administrative Record File; as used in this guidance, theongoing collection of documents which are anticipated toconstitute the administrativei record when the selection ofresponse action is made. > f

ARAB: applicable or relevant' and appropriate requirements (seeSection 121 (d) bf CERCLA) i '- ^ rr

ATSDR; Agency for Toxic Substance and Disease Registry.

CA; cooperative agreement (entered into withta state or localgovernment to transfer funds to conduct response activities).

' ':;:' i..•/.<•••. ! > . i :;;,", *f:,;.r;;-;; M,a :f," ;;•:%,•:::•;?• -.,•-.'. '. -:.:." .-CBI: confidential business information.

• • . • ' : • , • • ! < ..;•; ,. .•'• 'U; ! ,!'.,< ' 'K,, ••. ;•, , ,-,-., , . - > •, ; .: .]' .' ,,-' •'-••>•'•'• . -. , . ' . . . • •

CERCLA; Comprehensive Environmental Response, Compensation, andLiability Act of 1980, as amended'by the>SuperfundiAmendments andReauthorization Act of 1986 (also known as Superfund).

' '•-•'"' \"> , •" • • i , -

C.F.R.; Code of Federal Regulations.• ; •''..: '•• >.}•:..•':'• ;. fc;'':,., v.;/-^>'i ' .. :!-..:<. ' •'"• , : ,s ."..,

CMS; corrective measure study (RCRA corrective action document,equivalent to an FS); ; ^ v

CRC; Community Relations Coordinator.

CRP; community relations plan.

Document; as used in this guidance, includes writings, drawings,graphs, charts, photographs, and data compilation from whichinformation can be obtained. It does not, however, includephysical samples.

• i.'J.-'U ..' ',">'>';* <' \i ',<X ->•'..,.' • ,,i ,". , . ' ; < , '( s*l ;

DQJ; Department of Justice.i ll'.1 .. ..' • 6.1 . ' . , . - .

EE/CA; engineering evaluation/cost analysis (removal document).

EPA; United States Environmental Protection Agency.

ESP; Environmental Services'Division.

Explanation of Signifibarit Differences: post-ROD documentdescribed in Section 117(c) of CERCLA.

47


FOIA; Freedom of Information Act.

FSP; field sampling plan.

HRS: Hazard Ranking System.

IAG; inter-agency agreement (made with a federal agency).

Lead Agency; the agency that provides the OSC or RPM to plan andimplement a response action under the NCP.

NCP; National Oil and Hazardous Substances Pollution ContingencyPlan, as revised on March 8, 1990 (55 FR 8859).

NPL; National Priorities List.

OE; EPA Office of Enforcement.

OERR; EPA Office of Emergency and Remedial Response.

OIRM; EPA Office of Information Resources Management.

Operable Unit; a discrete action that comprises an incrementalstep toward comprehensively addressing site problems (see section300.5 of the NCP).

ORC; EPA Office of Regional Counsel.

OSC; On-Scene Coordinator (project manager for a removal action)

OSWER; EPA Office of Solid Waste and Emergency Response.

OWPE; EPA Office of Waste Programs Enforcement.

PA; preliminary assessment.

PRP; potentially responsible party.

OAPP; quality assurance project plan.

£&: remedial action.

RCRA; the Solid Waste Disposal Act, as amended by the ResourceConservation and Recovery Act.

RD: remedial design.

RI/FS; remedial investigation/feasibility study.

48


RFA; RCRA facility assessment (RCRA document, equivalent to aPA/SI).

RF|; RCRA facility investigation (RCRA corrective actiondocument, equivalent to an RI).

ROD; Record of Decision (documents the selection of a remedialaction).

RPM; remedial project manager (project manager for a remedialaction).

SAP; sampling and analysis plan.

SARA; Superfund Amendments and Reauthorization Act of 1986 (seeCERCLA above).

Site File; the file containing all site documentation.

SI; site investigation.

SMOA; Superfund memorandum of agreement (made with a state).

Support Agency; the agency that provides the support agencycoordinator to furnish necessary data to the lead agency, reviewresponse data and documents, and provide other assistance asrequested by the lead agency. The support agency may also concuron decision documents.

49

APPENDIX A

SECTION 113 (J) OF CERCLA

(j) JUDICIAL REVIEW,—(1) LIMITATION.—In any judicial action under this Act, judi-

cial review of any issues concerning the adequacy of any re-sponse action taken or ordered by the President shall be limit,ed to the administrative record. Otherwise applicable* princi-ples of administrative law shall govern whether any supple-mental materials may be considered by the court.

(2) STANDARD.—In considering objections raised in any judi-cial action under this Act, the court shall uphold the Presi-dent's decision in selecting the response action unless the ob-jecting party «»n demonstrate, on the administrative record,that the decision was arbitrary and capricious or otherwise notin accordance with law.

(3) REMEDY.—If the court finds that the selection of the re-spouse action was arbitrary and capricious or otherwise not inaccordance with law, the court shall award (A) only the re-sponse costs or damages that are not inconsistent with the na-tional contingency plan, and (B) such other relief as is consist-ent with the National Contingency Plan.

(4) PROCEDUKAJL EKHORS.—In reviewing alleged proceduralerrors, the court may disallow costs or damages only if theerrors were so serious and related to matters of such centralrelevance to the action that the action would have been signifi-cantly changed had such errors not been made.

50

SECTION 113 (K) op

) ADMINISTRATIVE RECORD AND PARTICIPATION PROCEDURES.—(1) ADMINISTRATIVE RECORD.—The President shall establish

an administrative record upon which the President shall basethe selection of a response action. The administrative recordshall be available to the public at or near the facility at issue.The President also may place duplicates of the administrativerecord at any other location.

(2) PARTICIPATION PROCEDURES.—(A) REMOVAL ACTION.—The President shall promulgate

regulations In accordance with chapter 5 of title 5 of theUnited States Code establishing procedures for the appro-priate participation of interested persons in the develop-ment of the administrative record on which the Presidentwill base the selection of removal actions and on which ju-dicial review of removal actions will be based.

(B) REMEDIAL ACTION.—The President shall provide forthe participation of interested persons, including potential-ly responsible parties, in the development of the adminis-trative record on which the President will base the selec-

. tion of remedial actions and on which judicial review of re-medial actions will be based. The procedures developedunder this subparagraph shall include, at a minimum,each of the following:

(i) Notice to potentially affected persons and thepublic, which shall be accompanied by a brief analysis

' of the plan and alternative plans that were consid-ered.

(ii) A reasonable opportunity to comment and pro-vide information regarding the plan.

(iii) An opportunity for a public meeting in the af-fected area, in accordance with section 117(aX2) (relat-ing to public participation).

(iy) A response to each of the «ignifirant comments,criticisms, and new data submitted in written or oralpresentations.

(v) A statement of the basis and purpose of the se-lected action.

For purposes of this subparagraph, the administrativerecord snail include all items developed and receivedunder this subparagraph and all items described in thesecond sentence of section 117(d). The President shall pro-mulgate regulations in accordance with chapter 5 of title 5of the United States Code to carry out the requirements ofthif subparagraph.

(O INTERIM BXCOBO.—Until such regulations under sub-psuragraphs (A) and (B) are promulgated, the administra-tive record shall consist of all items developed and re-ceived pursuant to current procedures for selection of theresponse action, including procedures for the participationof interested parties and the public. The development of anadministrative record and the selection of response actionunder thiy Act shall not include an adjudicatory hearing.

(0) POTINTIALLY uspONSDMJt PASTDB.—the Presidentshall mqV» reasonable efforts to identify and notify poten-tially responsible parties as early as possible before selec-tion of a response action. Nothing in this paragraph shallbe construed to be a defense to liability.

51

APPENDIX B

MODEL FILE STRUCTURE

This model file structure may be used to compile anadministrative record file for a remedial action, a removal action,or a combination of both remedial and removal actions. If therecord documents a remedial action decision, section 2 of the filewill contain only those removal action documents which (a) predatethe remedial record of decision and (b) are relevant to theselection of the remedial action. If the record documents a removalaction decision, sections 3, 4, and 5 of the file will contain onlythose remedial action documents which (a) predate the removal actionmemorandum and (b) are relevant to the selection of the removalaction.

Justification is unnecessary for file categories without anydocuments. Those categories should be left out of the index.

A document should be filed in only one category, even if itfalls into more than one category. It may be referenced in anothercategory. If necessary, additional subcategories may be developedto accommodate documents not falling in any of the definedsubcategories. Avoid adding categories of miscellaneous documents.

The correspondence subcategory can include comments andresponses specific to the category. If the comments and responsesare general in nature or address more than one category, they may beincluded in the public participation category.

52

INDEX [FIRST DOCUMENT]

1.0 SITE IDENTIFICATION

1.1 Background - RCRA and other information

1.2 Notification/Site Inspection Reports

1.3 Preliminary Assessment (PA) Report

1.4 Site Investigation (SI) Report

1.5 Previous Operable Unit Information

2.0 REMOVAL RESPONSE

2.1 Sampling and Analysis Plans

2.2 Sampling and Analysis Data/Chain of Custody Forms

2.3 EE/CA Approval Memorandum (for non-time-critical removals)

2.4 EE/CA

2.5 Action Memorandum

2.6 Amendments to Action Memorandum

3.0 REMEDIAL INVESTIGATION (RI)

3.1 Sampling and Analysis Plan (SAP)

3.2 Sampling and Analysis Data/Chain of Custody Forms

3.3 Work Plan

3.4 RI Reports

4.0 FEASIBILITY STUDY (FS)

4.1 ARAR Determinations

4.2 FS Reports

4.3 Proposed Plan

4.4 Supplements and Revisions to the Proposed Plan

5.0 RECORD OF DECISION (ROD)

5.1 ROD

5.2 Amandatnts to ROD5.3 Explanations of Significant Differences

6.0 STATE COORDINATION

6.1 Cooperative Agreements/SMOAs

53

•5 . j Sid.e Certification of

7.0 ENFORCEMENT

7.1 Enforcement History7.2 Endangerment Assessments7.3 Administrative Orders

7.4 Consent Decrees

7.5 Affidavits

7.6 Documentation of Technical Discussions with PRPs onResponse Actions

7.7 Notice Letters and Responses

8.0 HEALTH ASSESSMENTS

3.1 ATSOR Health Assessments

3.2 Toxicological Profiles

9.0 NATURAL RESOURCE TRUSTEES

9.1 Notices Issued9.2 Findings of Fact

9.3 Reports

10.0 PUBLIC PARTICIPATION

10.1 Comments and Responses10.2 Community Relations Plan10.3 Public Notice(s) (Availability of the Administrative Record

File, Availability the Proposed Plan, Public Meetings)

10.4 Public Meeting Transcripts10.5 Documentation of Other Public Meetings10.6 Fact Sheets and Press Releases10.7 Responsiveness Summary10.8 Late Comments

11.0 TXCmVMAL SOURCES AMD GUIDANCE DOCUMENTS

11.1 EM Headquarters Guidance11.2 fPA Regional Guidance11.3 State Guidance

11.4 Technical Sources

55

APPENDIX C

MODEL INDEX

Attached is an excerpt of the Index of documents included inthe Administrative Record for the Love Canal site. The Index liststhe documents according to the EPA file structure (category number).The Index includes the following information fields:

DOCUMENT NUMBER.

TITLE .

AUTHOR....

RECIPIENT.

DATE

TYPE

CATEGORY.

indicates the first and last page numbers ofthe document. Both page numbers will be thesame for one-page documents. In thisparticular index, the document numberconsists of a three letter site codefollowed by microfilm reel and framenumbers.

indicates the title or an enhanceddescription of the document in parentheses.

indicates the author or primary originatorand the author's corporate affiliation.

indicates the addressee or primary recipientand the addressee's cprporate affiliation.

indicates document date by month/day/year./ /means no date was available.

indicates the document type.

indicates the EPA file structure number.

56

APPENDIX 0

MODEL POSITION DESCRIPTION FOR ADMINISTRATIVE RECORD COORDINATOR

INTROPUqTTQII

The incumbent serves as an Administrative Record Coordinator inone of the Regional offices of the Environmental Protection Agency(EPA). [Each Region may want to add an introduction to Superfundand the Regional office her«.] The incumbent is responsible forcompiling and maintaining administrative record files for CERCLA(Superfund) response action decisions.

Section 113(k) of CERCLA requires the establishment of anadministrative record upon which the selection of a response actionis based. Such a record is a compilation of all documents which theAgency considered or relied on in making its response actiondecision. Judicial review of any issues concerning the adequacy ofany response action decision is limited to the administrativerecord. Public participation in the development of the record isrequired by law.

Establishment of thorough and complete administrative records is fessential to EPA's Superfund program. Administrative records which "|include public participation and withstand judicial scrutiny allow 'EPA to meet its goals and objectives.

The incumbent will be responsible for compiling and maintainingadministrative records for large numbers of Superfund sites. Eachrecord requires coordination with many people including: Federalstaff, state and local officials, private contractors, the generalpublic and potentially responsible parties. Furtherresponsibilities include deliberations over which materials toinclude in each record and requirements for dealing with privilegedmaterials.

MAJOR DUTIES AMD RESPONSIBILITIES

1. The incumbent is responsible for compiling and maintaining all- of the administrative records for selection of CERCLA responseactions for a Regional office of the EPA. The incumbent musthave complete knowledge of all rules and procedures governingdevelopment of the administrative record files.

2. Receive* mm. reviews all documents submitted by the RemedialProject mmmmmuf (RPM), On-Scene Coordinator (OSC), office ofRegional OBBJUM! (ORC) and other appropriate staff for inclusionin the) administrative record file*. The incumbent willcoordinate with staff responsible for deciding what documentsare included in the record and will arrange for adding documentsto the record file.

57

3. Compiles the administrative record file for each CERCLAresponse action. This includes logging the receipt of eachdocument, maintaining a central master file of documents,redacting information from privileged documents as directedby ORC, maintaining any privileged portions of each recordusing Agency security measures, arranging for copying ofdocuments in each record and transmitting the documents toappropriate repositories.

4. Coordinates the compilation of the administrative recordfiles with state and federal agencies. This includesreceiving records maintained by state and federal agenciesand notifying appropriate personnel of these records fortheir review.

5. Maintains and updates (monthly) an index of eachadministrative record file in conformance with Agencyguidelines.

6. Ensures public access to administrative record files. Thisincludes notifying the public of the availability of therecord, making the record available for public inspection,coordinating with personnel at the facility where the recordis located, maintaining an adequate copying facility andmaintaining a log of persons reviewing documents. Theincumbent will have to respond to phone calls and visitorswanting information on and from the record. These functionswill be coordinated with the Office of Public Affairs andSuperfund Community Relations Coordinators.

7 . Maintains the Regional Superfund Central Library of guidancedocuments and technical references.

CONTROLS OVBR WORE

The incumbent works under the general supervision of the[Hazardous Waste Branch Chief]. An administrative record isreviewed and certified for litigation by a person designated bythe Regional Administrator.

58

A P P E N D I X E

COMPENDIUM OF CERCLARESPONSE SELECTION

GUIDANCE DOCUMENTS

USERS MANUAL

U. S. ENVIRONMENTAL PROTECTION AGENCYOFFICE OF WASTE PROGRAMS ENFORCEMENT

MAY 1919

59

TABLE OF CONTENTS

i ) INTRODUCTION

: 0 O V E R V I E W OF COMPENDIUM USE .

2 I USE BY EPA PERSONNEL .: : USE BY THE PUBLIC

3.0 STRUCTURE OF THE COMPENDIUM

3.1 FILE STRUCTURE 3)3.2 INDEX STRUCTURE 3,

4.0 UPDATING THE COMPENDIUM

4.1 REGIONAL INPUT4.2 KEEPING THE COMPENDIUM CURRENT

LIST OF TABLES

Table

3-1 COMPENDIUM CATEGORIES AND NUMBER SERIES

Appendix

(A*) REGIONAL COMPENDIUM LOCATIONS AND ADMINISTRATIVE RECORD' COORDINATORS

(*) COMPENDIUM OF CERCLA RESPONSE SELECTION GUIDANCE DOCUMENTSINDEX

60

1-0 INTRODUCTION

This manuil describes how to use the 'Compendium of CERCLA Response Selection

r.ce Documents" 'Compendium). Each U S. E n v i r o n m e n t a l Protection Agency ' E P A iRegional Office main ta ins a compendium of guidance documents f r e q u e n t l y used d u r i n g

development and selection of response actions under the Comprehensive E n v i r o n m e n t a l

Response. Compensation, and Liabi l i ty Act (CERCLA).

EPA Headquarters used several sources to develop the initial Compendium. These sour.-as

included a pamphlet titled "Selected Technical Guidance for Superfund Projects" (OSWER

Directive 9200.7-01); the OSWER Directive System; the Superfund. Resource Conservation and

Recovery Act (RCRA), and Enforcement dockets; the Hazardous .Waste Collection Database; and: •. . " ••"W'V ,.•'( ' '

any existing regional compendiums. The documents in the Compendium are referenced in

administrative records for decisions on selection of response actions.. . . . . a - ,/M,\.' , , v , . . . - O i ' . V ' . K ' . ' • • - . •- - •

•%«*'The administrative record described here is the body of documents that form the basis for \

selection of a CERC.LA response action. Establishment of the administrative record is required -'' " ' : ' •.. •

by §1 13(k) of CERCLA. An administrative record is the compilation of documents considered or

relied on by EPA in making a decision. Documents that EPA anticipates will be included in the/

administrative record when the decision on a response action selection is made, are referred to as

the "administrative record file.* Guidance documents, or portions of guidance documents, that

are considered or relied on in selecting a CERCLA response action should be part of an

administrative record file.

Certain frequently used guidance documents may b« referenced in the index to anadministrative record but not physically included in the administrative record file. The referenceshould indicate the title tad location of any documents included in the administrative record butmaintained in the Compendium, which is kept at a central rational location. If a guidancedocument that ie sot listed in the Compendium is considered or relied on in selecting the responseaction, the dossjMSt most be physically included in the administrative record file. TheCompendtasililjt reduce the burden of copying and storing multiple copies of frequently used

Sectiee 2.0 of this manual briefly discusses use of the Compendium by EPA personnel andthe public. Section 3.0 discusses the Compendium's file and index structure. Documents in theCompendium are filed in three- ring binders and listed on an index which is generated by and

(1)

61

maintained on a computer database. Procedures for updating the Compendium are presented ,n

Section 40.

2 0 O V E R V I E W OF COMPENDIUM USE

The Compendium is intended for use by two groups: EPA personnel, d u r i n g the process

of response action selection and adminis t ra t ive record development, and the p u b l i c , for r « v : » w ;t'

documents referenced in the index to an administrative record.

The user should note that although the term "guidance" is often used in discussing the

Compendium, it does not imply that only guidance documents are included. The documents may

also be policies, memoranda, clarifications, case studies, manuals, handbooks, reports, and other

documents used in the selection of CERCLA response actions.

2.1 USE BY EPA PERSONNEL

<*•*. EPA personnel use the Compendium primarily to reference frequently used guidance

documents that may be maintained in the Compendium rather than physically included in eachadministrative record file. The index must indicate which documents are physically located inthe Compendium and mutt specify the location and accessibility of the Compendium. The indexshould also reference only the specific documents in the Compendium that were considered or

f relied on for the site for which the record is being compiled. The index should not reference the< entire Compendium.

2.2 USE BY THE PUBLIC

As with any unrestricted document included in a record, the Compendium documents areaccessible for public review. When EPA publishes a notice of availability of an administrativerecord file, that notice will include the location of the Compendium. The Compendium win be

**$ available for fSjMftviewini at a central regional establishment (for example, the EPA RegionalOffice), and mma)f«t near the site for which the record is being compiled. (See Appendix A fora list of ts*SMatar«r each regional copy of the Compendium and the names of the RegionalAdinissMSJNs Record Coordinators.)

(2)

62

3.0 STRUCTURE OF THE COMPENDIUM

Current ly, the Compendium is organized in to 10 categories. An overview of the f i l ei t r u c : u r « is presented below, as well is a discussion of the index tha t i d e n t i f i e s the documentsincluded m the Compend ium. This section also discusses the data elements i den t i f i ed m theindex . The data elements provide v i ta l information on the documents included in the

Compendium and ire contained in a database used to compile the Compendium and genera te :^.eindex .

3 . 1 FILE STRUCTURE

The Compendium is structured according to 10 major categories that generally reflect thevarious components of a response action selection under CERCLA. Table 3-1 lists the currentCompendium categories. The documents are further grouped into subcategories that indicatetheir more specific nature, when applicable. For example, the remedial investigation/feasibilitystudy (RI/FS) section of the Compendium is broken down into more specific subcategories to \identify the wide range of RI/FS documents available. When the documents apply to multiplecategories, secondary references are provided in the Compendium index.

Each document has been assigned a unique four-digit document number. The bounddocuments contained in each category are arranged numerically. When a user wants to access adocument, he or she will find the document filed according to the assigned number. The four-digit number series assigned to each category are also listed in Table 3-1.

3.2 INDEX STRUCTURE

When an administrative record index refers to a document contained in the Compendium,that document is also identified in the Compendium index. The index, contained as the firstdocument in the CoapendiiuB, provides the information necessary to identify and locate thedesired docusMsl (For a copy of the currant Compendium index, see Appendix B.)

> the user will know the title of the document rather than the numberassigned, tita iatftx lists the documents under each category in alphabetical order. Analphabstksl Ustiaf of secondary references follows the primary documents listed under eachcategory.

(3)

63

TABLE 3-1COMPENDIUM CATEGORIES A N D N U M B E R SERIES

CATEGORIES N U M B E R SERIES

Index 0000

Prc- Remedial 0001-0999

Removal Action 1000-1999

Remedial Investigation/ 2000-2999Feasibility Study

General 2000-2099

RI Data Quality/Site AWaste Assessment 2100-2199

Land Disposal Facility Technology 2200-2299

Other Technologies 2300-2399

Groundwater Monitoring <fcProtection 2400-2499

3000-3999

4000*4999

5000-5999

6000-6999

7000-7999

1000-1999

9000-9999

1 Applicable or Relevant and Appropriate Requirements

64

The Compendium index is maintained on i database using dBASE III Plus s o f t w a r e 7'i.s

database contains numerous data e lements that store the in format ion d i s t i n g u i s h i n g and g r o u p : - g

each document into the appropriate categories The database is c u r r e n t l y ma in t a ined at EPA

Headquarters.

M a i n t a i n i n g the index in a database allows the informat ion to be organized in d i f f e r e n t

*ays. For example , should the Region need an index that is sorted ent i re ly in a l p h a b e t i c a l o r i e r

by t i t l e , chronologically by document date, numerically by the number assigned each d o c u m e n t ,

etc., EPA Headquarters can generate and forward such an index. The data elements of the

Compendium database, as identified on the index, are included in Appendix B.

4.0 UPDATING THE COMPENDIUM

The Compendium is designed to allow for the periodic addition of newly developed pol icyor guidance documents. Updates to the Compendium are necessary in the following cases: ( 1 )EPA releases relevant new guidance, policy, reports, etc.; (2) regional staff find additional \.documents that should be included in the Compendium; and (3) existing documents are revised or -^superseded. EPA Headquarters will continue to monitor the information sources used to developthe initial Compendium for new or revised documents that may qualify for inclusion in theCompendium.

Guidance documents identified for addition to the Compendium will be reviewed andrelevant information will be entered into the existing database. After the database is updated, anew index will be generated and sent to each Regional Office. This new index will replace anyprevious indices. Hard copies of the additional documents will be sent to each region forinclusion in the Compendium. The revised index will indicate the category for each newdocument.

4.1 REGIONAL INPUT

Partisa^nsMved is the response action selection process, as well as Administrative RecordCoordinator*, mm) tuA documents that are frequently included in administrative records but arenot referssflsf to the Compendium. In such cases it may be desirable to include the documentsin the Compendium as part of the updating process. However, since the Compendium is designedto be nationally applicable, only documents used frequently in different regions will be included.Any ration-specific document should be maintained in separate rational files and not in theCompendium.

(5)

65

4.2 KEEPING THE COMPENDIUM C U R R E N T

Once a document is included m the Compendium, it w i l l remain in the C : m ? e n d i u m -.->

m a i n t a i n the integri ty of any record that refers to it . However, documents con ta ined in theCompendium may be revised in the fu tu r e to reflect changes, for example, changes in p o l i c y .technology, or law. The most current version of these documents wil l be added to the

Compendium, as appropriate, so .that they will be available for the administrative record process

Although no document included in the Compendium will ever be replaced or removed

once an administrative record index refers to it, those documents that are superseded w i l l be

flagged and identified on a separate index (superseded index) attached to the Compendium's mami'., ^ < v ' '• '• • ' ..^ ••* - r

index. The superseded index will also identify the corresponding revised version added to the

Compendium to indicate the new document that should be used.

Response action selections frequently rely on technical data generated at Superfund sites

across the country. Such data is often maintained on national databases. Depending on their use

and availability, certain of these databases may be included in the Compendium. For example,' • • . , ' ' i - ' ' ' . ' . £t/Uj!t&{ i,".,-,'' fi" •>*•!,:'•>.) •• . 1;'- l-f'f'r,\ '."•• M.- - ' '••' *' ' ' " '

the Public Health Risk Evaluation Database (PHRED) ij part of the Compendium. PHRED is

stored on two floppy diskettes that are regularly updated as additional information becomes

available. Whenever updated PHRED diskettes are generated, they will be added to the

Compendium. Those diskettes that were previously included will also remain in the Compendium

and will be identified on the superseded index.

(6.)

66

(APPENDIX A)

REGIONAL COMPENDIUM LOCATIONS AND ADMINISTRATIVE RECORD COORDINATORS

Region

I

II

III

IV

VI

Address

90 Canal StreetBoston, MA 02203

60 Westview Street *Lexington, MA 02173

26 Federal PlazaNew York, NY 10278

Woodbridge Avenue *Raritan Depot - Bldg 10Edison, NJ 08837

841 Chestnut StreetPhiladelphia, PA 19107

345 courtland Street, N.E.Atlanta, GA 30365

230 South Dearborn StreetChicago, IL 60604

1445 Ross Avenue12th Floor, Suite 1200Dallas, TX 75270

Coordinator/PH *1. Remedial2. Removal

1. Brenda Haslett(617)573-1759FTS 833-1759

2. Pam Bruno(617)860-4309

1. Jenny Delcimento(212)264-8676FTS 264-8676

2. Norman Vogelsang(201)321-6657FTS 340-6657

1. Margaret Leva(215)597-3037FTS 597-3037

2. Joan Henry(215)597-2711FTS 597-2711

1. Debbie Jourdan(404)347-2930FTS 257-2930

2. Same

1. Jamie BellFTS 353-7446

2. Jan PfundhellerFTS 353-7626

1. Karen witten(214)655-6720FTS 255-6720

2. Joann Woods(214)655-2270FTS 255-2270

The Compendium was initially distributed to remedialAdministrative Record Coordinators only. Copies may belocated at this address.

67

Region

VII

VIII

IX

Address

726 Minnesota AvenueKansas City, KS 66101

25 Funston Road *Kansas City, KS 66115

999 18th StreetSuite 500Denver, CO 80202

215 Fremont StreetSan Francisco, CA 94105

1200 Sixth AvenueSeattle , WA 98101

Coordinator/PH *1. Remedial2. Removal

1. Barry ThiererFTS 276-7052

2. Helen Bennett(913)236-3881FTS 757-3881

1. Carole MacyFTS 330-1281

2. Tina ArdemusFTS 330-7039

1. Tom MixFTS 484-1960Don BriggsFTS 556-6637

2. Holly Hadlock(415)768-1354

1. Lynn Williams(206)442-2121FTS 399-2121

2. Same

The Compendium was initially distributed to remedialAdministrative Record Coordinators only. Copies may not belocated at this address.

68

(A P P E N D I X

COMPENDIUM OF CERCLARESPONSE SELECTION

GUIDANCE DOCUMENTS

INDEX

69

T A B L E OF CONTENTS

Cir;2orv - Subcateaorv Vamirer Series' PI;J

Pre -Remed ia l OCO1-0002 ;

Remova l Ac t ion " 1000-1008

RI FS - General ZOOO-2012 :

RI, FS - RI Data Quality/Site & Waste Assessment 2100-2119 :

RI/FS - Land Disposal Facility Technology 2200-2212 4

RI/FS - Other Technologies 2300-2320 5

RI/FS - Ground-Water Monitoring & Protection 2400-2408 7

ARARs 3000-3005 8

Water Quality 4000-4003 9

Risk Assessment 5000-5015 9

Cost Analysis 6000-6001 11

Community Relations 7000-7000 11

Enforcement 8000-8001 12

Selection of •MMt/Dedsioa Documents 9000-9001 12

Data Elessssft DsflsitkMtt

List of Ortanixational Abbraviadons and Acronyms Identified in the Index

'The range for each number series identified represents the numbers assigned to those documentscurrently in the Compendium.

70

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u»le AUltait ilJlut ftyet I In Allj.lm i,l v

i IMXX

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DATA ELEMENT DEFINITIONS

The data elements of the Compendium database, as identif ied on the index, ire sho-*-nbelow:

DATA ELEMENT

Doc No

Vol

Title

Date

Authors

Status

Page*

Tier

DEFINITION

Unique four-digit number assigned to a document inc ludedin the Compendium according to category.

Volume number of the binder in which the hard copy ofthe document is contained.

Title of the document. Secondary Reference is identifiedfollowing the title when a document relates to more thanone category. The document itself is filed under thenumber series assigned to its primary category.

'"'sTThe date the document was published by or released from Jthe issuing office or entity.

Authors) and affiliation(s). Also includes identification ofthe EPA Project Officer and issuing office, whereapplicable.

Indicates the status of a document, either draft or finalversion.

Total number of printed pages of the document, includingaay attachments.

Tier 1 or Tier 2. Tier 1 documents are the core documentsof the Compendium aa listed in the pamphlet titled•Selected Technical Guidance for Superfund Projects.*compiled by OERR. Tier 2 documents are all otherdocuments included in the Compendium.

Attachments to a document by complete or abbreviated jiftitle. WEPA report or OSWER Directive System numbers, whereapplicable.

83

LIST OF ORCANI7ATONAL A B B R E V I A T I O N S AND ACRONYMS IDENTIFIED (S THF i s n r v

Agency for Toxic Substances and Disease Registry

Center for Environmenta l Research Information

Contract Laboratory Program

U.S. Corps of Engineers

Exposure Assessment Research Division

Environmental Criteria and Assessment Office

Environmental Monitoring Systems Laboratory

Emergency Response Division

Environmental Research Laboratory

Hazardous Response Support Division

Hazardous Site Control Division

Hazardous Site Evaluation Division

Hazardous Waste Engineering Research Laboratory•,1 < • • : • • . ' • •

Municipal Environmental Research Laboratory

Office of Environmental Engineering and Technology

Office of Emergency and Remedial Response

Office of Health Effects Assessment

Of Hce of Research and Development

Office of tottiWmm

Office of SoMIHM ead Emergency Response

Office) of wiBjsae rroejrama Enforcement

PolicTAealysa Staff

Waterways Experiment Station

Waste Management Division

A c r o n y m

ATSDR

CERI

CLP

COE

HARD

ECAO

EMSL

ERD

ERL

HRSD

HSCD

HSED

HWERL

MERL

OEET

OERR

OHEA

ORD

OSW

OSWER

OWPE

PAS

WES

WMD

APPENDIX F

MODEL TRANSMITTAL COVER LETTER

[Name of Contact];Address]

Dear [Name of Contact]:

The U.S. Environmental Protection Agency is r ecru i red by law toestablish administrative records "at or near a facility at issue."This administrative record consists of information upon which theAgency bases its selection of response action for a particularSuperfund site.

By providing the public with greater access to these records, itis our hop* that they will be better equipped to commentconstructively on site activities and to understand the issuesrelating to the selection of the response action at the site.

We appreciate having the [Name of local repository] as thedesignated administrative record facility for the [Name of site] \Superfund site. The enclosed record files, along with any futuredocuments relating to technical activities at the site should beplaced in the [Name of local repository] and be available for publicreview. The record files should be treated as a non-circulatingreference - it should not be removed from your facility.

Also enclosed is a fact sheet to assist you and your staff inanswering questions posed by the public concerning administrativerecords for selection of response actions at Superfund sites.Please feel free to distribute this guide to the public.

To ensure the receipt of the administrative record file, I wouldappreciate your completion of the attached Document TransmittalAcknowledgment form. Please return this form in the enclosed self-addressed, stamped envelop*.

Again, I would like to thank you for your cooperation with theU.S. EPA in serving as a Field Repository. If you have anyquestions or comments, please contact [Name of EPA contact] at[Phone No.].

Sincerely,

[Name]Administrative Record Coordinator

85

APPENDIX G

MODEL DOCUMENT TRANSMITTAL ACKNOWLEDGMENT

Prom: [Regional Office Address]

To: [Field Repository Address]

I acknowledge that I have received the following documents from theU.S. EPA Region; Office, pertaining to [Site Name] Superfundsite. •'-' ' : ' • " ' •

Administrative Record Name - , ,. r Site-Name 1•,.,:,.,,- .,.,,*-.;.,.<>•! *»r- l ? , • • ; < - ' • • • • . • "

Administrative Record Document-umbers -' " " 1

Signed .... ..'...'. ".", ' ,-,M/- ';r:'f(x%:W jo!i;>£|*w <^.&. -w^l.J -''!?&;;'t'-E'.v s/J '

Dat .... , ... . A- '.-'j-foivi •-.-(•.•.'.,' '.i -;'s:o!•>»'.?; (''..'-wj ,-;/ rt-.A:i.•#,(i

Please return «ii, form tot yj*!- ^

86

APPENDIX H

PACT SHEET ' /

Records in Local Repositories

The "administrative record" is the collection of documents whichform the basis for the selection of a response action at a Superfundsite. Under section 113(k) of the Comprehensive EnvironmentalResponse, Compensation, and Liability Act, as amended by theSuperfund Amendments and Reauthorization Act (CERCLA), EPA isrequired to establish an administrative record for every Superfundresponse action and to make a copy of the administrative recordavailable at or near the site.

The administrative record file must be reasonably available forpublic review during normal business hours. The record file shouldbe treated as a non-circulating reference document. This will allowthe public greater access to the volumes and also minimize the riskof loss or damage. Individuals may photocopy any documentscontained in the record file, according to the photocopyingprocedures at the local repository. _

The documents in the administrative record file may become •damaged or lost during use. If this occurs, the local repositorymanager should contact the EPA Regional Office for replacements.Documents may be added to the record file as the site workprogresses. Periodically, EPA may send supplemental volumes andindexes directly to the local repository. These supplements shouldbe placed with the initial record file.

The administrative record file will be maintained at the localrepository until further notice. Questions regarding themaintenance of the record file should be directed to the EPARegional Office.

The Agency welcomes comments at any time on documents containedin the administrative record file. Please send any such comments to[name and address]. The Agency may hold formal public commentperiods at certain stages of response process. The public is urgedto use these formal review periods to submit their comments.

For further information on the administrative record file,contact [name) emmt phone no. of Administrative Record Coordinator].

87

APPENDIX I

MODEL NOTICE OP PUBLIC AVAILABILITY

THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCYANNOUNCES THE AVAILABILITY OF THE

ADMINISTRATIVE RECORDXYZ SITE, [Locality, State]

The U.S. Environmental Protection Agency (EPA) announces theavailability for public review of files comprising theadministrative record for the selection of the [remedial, removal;action at the XYZ site, [Locality, State]. EPA seeks to inform thepublic of the availability of the record file at this repository andto encourage the public to comment on documents as they are placedin the record file.

The administrative record file includes documents which form thebasis for the selection of a [remedial, removal] action at thissite. Documents now in the record files include [preliminaryassessment and site investigation reports, validated sampling data,RI/FS work plan, and the community relations plan]. Other documentswill be added to the record files as site work progresses. Theseadditional documents may include, but are not limited to, the RI/FSreport, other technical reports, additional validated sampling data,comments and new data submitted by interested persons, and EPAresponses to significant comments.

The administrative record file is available for review duringnormal business hours at:

[Repository Name] and U.S.EPA - Region Z[Address and Phone i] [Address and Phone #]

Additional information is available at the following locations:

verified sampling data - Contract laboratory,and documentation [Address and Phone I]

GuidassM documents and - EPA-Region ZteXmsUcal literature [Address and Phone I]

written cammmt&m on the administrative record should be sent to:

[Name], Office of Public AffairsU.S. EPA - Region Z[Address and Phone I]

88

APPENDIX J

MICROFORM APPROVAL MEMORANDUM

UNITED STATES ENVIRONMENTAL PROTECTION AGENCYWASHINGTON, O.C. 20460

OCT 21

SOL 3 MAS'S iNC :V

MEMORANDUM

SUBJECT: Microfilming t -.e Admir. .strative Record

FROM:Office of Information Resources Management

•

Asa H. Frost, Jr.< .Director''OSWER Information Management Staff

TO: Asa H. Frost, Jr.. , .Director''

In accordance with EPA Records Management Manual, Chapter 6,dated 7/13/»«, I approve OSWER's request for anadministrative record micrographic system for regionalhazardous waste management programs.

The feasibility study prepared for OWPE, entitled"Assessment it the Suitability and Costs of Alternatives forthe Administrative Record" (June 30, 1908), satisfactorilydocuments and justifies the need for converting theadministrative record to microform. In particular, therequirement under SARA to make the administrative recordpublicly available at or near each hazardous waste sitemakes microform a cost-effective storage medium.

Please infer* each regional hazardous vaste program of myapproval of OSVCI's request and of the need to comply withthe reamiaiof provisions of Chapter 6 of the EPA RecordsManual should the region proceed with implementing anadministrative record micrographic system.

cc: SIRMOs, Region 1 - X

APPENDIX K

MODEL CERTIFICATION

IN THE [NAME OF COURT]

L'NITED STATES OF AMERICA,

Plaintiff,

v.

[NAiMES OF DEFENDANTS]

Defendants,[number]

v. ; ' '

[NAMES OF THIRD PARTYDEFENDANTS]

Third Party Defendants

CIVIL ACTION NO.

COPRISINGOIP DOCUMENTS

ADMINISTRATIVE RECORD

The United States Environmental Protection Agency (EPA) herebycertifies that the attached documents constitute the administrativerecord for selection of response actions under the ComprehensiveEnvironmental Response Compensation and Liability Act or 1980, asamended, for the [name of site] site in [City or County], [State].

By the United States Environmental Protection Agency:

In witness whereof I have subscribed myname this __ _ day of _ , 19 _ ,_in reitv.

r signature! _

90

APPENDIX L

PREAMBLE TO SUBPART I OF NCP

Subnart f—Adininistrauvt Record farSelection of Response Action

Subpart 1 of the NCP is entirely new.U implement* CERCLA requirementsconcerning the establishment of anadministrative record for selection of aresponse action. Section U3(k)(l) ofCERCLA requires the establishment of"an administrative record upon whichthe President shall bast th* selection ofa response action." Thus, today's rulerequires the establishment of anadministrative record that containsdocument! that form the basis for cheselection of a CERCLA response action.b addition, section ll3(k)(2) require*the promulgation of regulation*establishing procedure* for theparticipation of interested person* in thedevelopment of the administrativerecord.

Th*M regulation* regarding theadministrative record includeprocedure* for public participation.Because on* purpose of theadministrative record i* to facilitatepublic involvement, procedure* for

91

e v d b i i j h i n s a"c nair. ' .j 'r -.1 'fe -ecord-TP closely related (o the proceduresgoverning public participation. Generalcommunity relations provisions found inother pens of the proposed NCP areaddressed elsewhere in this preamble.

The following section* discuss themajor comments received on theproposed subpart I and EPA s responses.

\cme- General comments.Proposed nie: Subpart I deUils how

the administrative record is assembled,maintained and made ava i l ab l e to thepublic

Response to comments. Comments onthe administrative record regulationsincluded the suggestion that thepreamble provide a general statementdifferentiating between theadministrative record and theinformation repository.

EPA agrees that while subpart Iincludes ample information on therequirements of the administrativerecord, a brief clarification would helpto differentiate the record from theinformation repository.

The information repository includes adiverse group of documents that relateto a Superfund site and to the Superfundprogram in general including document*on site activities, information about thesite location, and background programand policy guide*. EPA requires aninformation repository at all remedialaction sites and any site where aremoval action i* likely to extendbeyond 120 days. The purpose of theinformation repository i* to allow openand convenient public access todocument* explaining the action* takingplace at a site.

The administrative record discussedin this subpart. by contrast ia the bodyof documents that form* the baaia of theagency'* selection of a particularresponse at a sit*, i.e.. document*relevant to a re*pon*e selection that thelead agency reiie* on, a* w*U Mrelevant comment* and information thatthe lead agency comiden but may rejectin th* ultimate rcipona* selectiondecision. Thua, tb* raoatd wOt includedocument* the level a^aaevoft agencygenerate. PRP ••••gtmmteeaemMati. tadtechnical and tUtfiftmtt Information,

with thoat tasfcSamsitlM Informationrepository, lift temttfetrativ* recordinclude* ivelrtslintttioa a* *lta-spedfic datftaajd Momenta, guidaac*documaots aad laconical reference*used ia the aaloction of th* reaponeeaction. Th* information repuaitory Buyinclude gtbdee to th* Superfund pracaca.background information, fact *heet*pran nice***, mane, and otherinformation to aid public undentaneinf

of .1 s:ie response regardless of w h e t h e rthe in format ion has bearng on theeventual response selection at that site.

One commenter felt that there was nomechanism for PRPs to participate in thedevelopment of the administrativerecord. In response. PRPs are given achance to participate in the developmentof the administrative record throughoutits compilation. EPA will make availableinformation considered in selecting theresponse action to PRPs and othersthrough the administrative record file.Interested persons may peruse therecord file, submit information to beincluded in the administrative recordfile, or may comment on its contentsduring the ensuing public commentperiod.

Same: Section 300 JOO(a).Establishment of an administrativerecord. Section 300.810(8). Contents ofthe administrative recori

Proposed rule Section U3(k)(l) ofCERCLA state* that the "President shallestablish an admini*trative record uponwhich the President shall baae th*selection of a response action." EPAused similar language in 1300.dOO(a) ofthe proposed rule; "The lead agencyshall eatabliah an administrative recordthat contain* the document* that/o/mth* basit tor the selection of a reaponaeaction." (Emphaai* added.) Section300.810(a) state* that the '"administrative record file for selectionof a raapona* action typically, but not iaall cases, will contain the followingtype* of document* * * *." followed byan enumeration of thoea document*.

Retpont* to comment*/ EPA'* choiceof th* phna* "form the ba*i«" ini 30OMO(a) drew many comment*. Thecomm*nt* expreeaed concern that m*lead agency would have the diacntionto include m the adminiatrab've recordonly thoae document* that supportEPA'* aeiectad remedy.

Thee* comment* appear to b* baaedon a mi*tmder*tanding of what thephraae "form* th* bean oT mean* a* itwaa uaed m the propoaad rule. Thestatute d*fin*a tb* adminiatratrv* recordaa the "record upon which the President*hall base the selection of a retponaeaction." EPA'* intent in defining tb* .record a* the file that "contain thedocument* that form th* baaia for tbe•election of a reeponae action'' weesimply to reflect the natatory language.For example, an edmintatretive recordwill contain th* public comment*submitted on th* propoeed action, eveniftheleadataticyrer*cttth*comm*nta.beeaua* tbe lead agency i* required toconaidar the** comment* and respond tosignificant comment* in making a finaldacMoo. Tmia. the** comment* also

form '.he bis.s of '.ae f.r.i. .-essc-i*Jeiecnon decision. EPA irrer.is :-a' ' -»regulatory language defining theadministrative record file embodygeneral principles of adminis t ra t ive .a*concerning what documents areincluded m an "administrative record"for an agency decision. As a result.contrary to the suggestion of thecommenters, the proposed definit ion ofthe administrative record does not meanthat the record will contain only thosedocuments supporting the selectedresponse action.

A commenter asked that the phrase"but not m all cases" be deletcc from§ 300.fllO(a), or specify the case* wneredocuments ere excluded from theadministrative record. EPA believes i t isbetter not to attempt to list excludeddocuments in the NCP since EPA caonotpossibly anticipate all the types ofdocument* that will be generated for asite or for future sues, and which ofthe** document* should be excludedexcept as generally described int 300410(b). it should be noted, forexample, that although a healthassessment done by ATSDR wouldnormally be included in theadministrative record, it would not be ifthe assessment was generated byATSDR after the response i* selected.

Other* commented that certaindocument* should always be included inthe adnunutrative record. EPA believesthat only a email group of document*will alway* b* generated for every typeof CERCLA aite. since each site i*unique. Other document* may or maynot b* generated or relevant to theselection of a particular response actionat a site, EPA understand* that adefinitive liat of required documentswould a**iat parti** in trying to esses*the completenea* of th* administrativerecord, but nicb a list would not bepractical Different site* requiredifferent document*.

A related group of comments askedthat th* adminiatrative record alwaysinclude certain document*, including.specifically, "verified sampling data."draft and "predectaionat" documents.and technical studies. One commentstated that "Invalidated" sampling dataand draft* muit be part of theadministrative record in somesituation*. Verified sampling data, i.e..data that have gone through the qualityassurance and Quality control process.will b* included in th* record when theyhave bean need in the selection of areaponae action. "Invalidated" data, i.e..data which have been found to beincorrectly gathered, are not utsd byEPA in sekctrng the response action andshould therefore not be included in the

92

"" " '"J. These snou.a oe Uii ' . injju.sr 'tf^ro-n ^nvsiiaaie<S data—^jdia ( h a t h j*e

noi been througn ibe quau iy controlprocess—which may in limitedcircumstances be considered by theagency in selecting the response action.It is EPA 4 policy to avoid usingunvaiidated data whenever possible.Nonetheless, there are times when theneed for action and the lack of validateddata requires the consideration of suchdata in selecting aa emergency removalaction. If such data axe used, they willbe included :n the record.

In general, only final documents areincluded in the administrative recordfiles. Draft documents are not part of therecord for a decision because theygenerally are revised or superseded bysubsequent drafts and thus are not theactual documents upon which thedecision-maker relies. However, drafts(or portions of them) generally will beincluded in the administrative record forresponse selection if there is no finaldocument generated at the rime theresponse ia selected and the draft is thedocument relied on, (n addition, a draftwhich ha* been released to the publicfor the purpose of receiving comments isalso part of the record, along with anycomment* received.

Similarly, predacisional anddeliberative documents, such as staffnotes or staff policy recommendationsor options papers, do not generallybelong in the administrative recordbecause they merely reflect internaldeliberations rather than final decision*or factual information upon which theresponse selection is based. However,pertinent factual Information ordocuments stating final decision* onresponse selection issues for a sitegenerally would be included in therecord.

Technical studies are also part of therecord, again, ^considered by the leadagency in selecting the response action.The commenter seams to hawmisinterpreted EPA's intent by assumingthat only factoal portions of a technicalstudy are part of th* record. Tha istudy, or relevant part of me sejsjr.should b* pert of the racers.

Another comment stataattiaaiSstudministntiv* record iany studies on coat, <permanence. «ad^_ _.___the lecord of decMiasv TVana anidiee eraalready part of the iinvestigation and feasibility study,which ia always included In that record.Another party stated that samplingprotocol* should bate thaiidministrativ* iswotd^ Satnotinsjprotocols are part of th* RI/FS workplan, which ia also part of d»administrative; record. And because

jdrr.Dur.s protocols. ,LKB cAain of custodydocuments, ire generally groupedtogether. EPA has provided m thi*rulemaking that such grouped or serialdocuments may be Luted aa a group mthe index to the administrative recordfile.

A related comment requested that alldocuments generated by contractorsshould be induced m the record. Inresponse, any document that forms thebasis of a response selection decisionwi l l be included in the administrativerecord. It i* immaterial who developsthe document — it can be a contractor.the public (including a PRP). a state orEPA.

One commented asked that ARARdisputes involving a disagreement overwhether a requirement i* substantive oradministrative be documented in therecord. Other comment* stated that EPAmust ensure that complete ARARdocumentation and documentation of allremedial option*, not just th* selectedremedy, be placed in th* record. WhereARAR isaues are relevant to responseselection, lead and support agency-generated documents and publicinformation submitted to the leadagency on this issue would be part ofthe record. The record will includedocumentation of each alternativeremedy and ARAR studied during theRI/FS process, and the criteria used toselect the preferred remedy during theremedy selection process.

EPA also received several comment*stating* that every document contributinsjto decision-making should be part of meadministrative lecuru, EPA cannotconcur in this formulation of th*administrative record since it is unclearwhat "contributing to" means and thatphrase may be overly broad. Forinstance, the term "contributing to**could b* interpreted to indud* all draftdocuments leading] up toe final product.Thee* draft documents do not generallyform dw baai* of th* response selection.

rtjcofdtaduo^documwtswmchforrath* baaia for the decision to select dwresponse action. EPA believes that moat

tfibutlnsj documents wiO be* .

One comment stated that me haxardrankinf system (HRS) Informatioashould be tateraded in dw adainistntiv*record me selection of th* reapooa*action. Specifically. they nefoated thatinternal memoranda, daily note*. aadth* original HRS SCOT* should bo mad*available. Th* National Priorioee Us*(NPL) docket is a public docket andalready contains tb* relevant rankfesfinformation. The information generallyrelevant (o tb» listing of a arteon theNPL is preliminary and not aecesasrily

action. I f . however '.rer* s r.?:: — •* . :-.in :he NPL docnet that '.s rei.eo, on nselecting the response action. ,t wnl ^e .included in the administrative recora.

Another commenter stated tha i aiimaterials developed and received durrgthe remedy selection process should bemade a part of the record, and statedthat the NCP currently omits inclusion oftranscripts. As noted above, certaindocuments simply will not be relevant \athe selection of response actions. EPAwill, aa required by the statute, includein the record all those materials.including transcripts, that form the basisfor the selection of a response action.whether or not the materials support thedecision.

Several commenters asked thai thelead agency be required to mail themindividual copies of documents kept mthe administrative record. Theserequests included copies of samplingdata, a copy of any preliminaryassessment petitions, potentialremedies, the risk assessment, a list ofARARs,. and notification of all futurework to be done. Commenters alsoasked to be notified by nail when a leadagency begins sampling at a site and >whan a contractor i* chosen for aresponse action, In addition, manyasked for the opportunity to comment onthe documents mentioned above. Arelated comment suggested that EPAmaintain a mailing list for each site andmail copies of key documents in therecord to every party on the list.

EPA believes that maintaining anadministrative record file in two place*.in addition to a more generalinformation repository, with provisionsfor copying facilities reflects EPA'sstrong commitment to keeping theaffected public, including PRPs.informed and providing the opportunityfor public involvement in responsedacuion-makinf. Requiring EPA to mailindividual capias of documentsavailable in th* record file is beyond ^ ___any statutory requirements, unnecessary iffdue to tbe ready availability of the *Wdocuments in the file, and a severe

. burden oa Agaacy staff and resource*.Most of the documeats requested abovewill fanerally be available in theadministrative record for public reviewand copying. Additionally, m* leadsjjaocy should maintain a mailing list oflulaiasisd persona to whom key siteinformation and node* of site activitiescan be mailed as part of dteircomfflBSUty relations plan for s rite.

One fnaBBsantar saasil lhai elland commenta by other

uuaiaatad paras* b* included In therecord, refardtese of their

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:^rr.-nen-.3 r e c e i v e u Ji..".rvg Lne commentperiod in the aoirunutrative record.regardless of their significance. Whenthe lead agency considers commentssubmitted after the decision documenthas been signed, the "significance" of acomment has a bearing on whether itwill be included in the administrativerecord, as specified in i 300.S25(c). Inaddition, while EPA is under no legalobligation to place in the record orconsider comments submitted prior tothe comment period. EPA will generally,as a matter of policy, considersignificant comments submitted prior tothe comment period, place them into therecord, and respond to them at anappropna.e time. However, persons whowish to ensure that the comments theysubmitted prior to the comment periodare included in the record must resubmitsuch comments during the commentperiod.

Final rule: Section 300.8CO(a) ispromulgated as proposed.

Name: Section 300.800{b).Administrative record for federalfacilities.

Proposed rule: Section 300.«00(b)state* that the lead agency for a federalfacility, whether EPA. the U.S. CoastGuard, or any other federal agency,shall compile and maintain anadministrative record for that facility:When federal agencies other than EPAare the lead at a federal facility site,they must furnish EPA with copies of therecord index, in sddition to otherspecified documents included in therecord. The preamble to the proposedNCP discussion of i 300.800(b) (53 FR51464) states that EPA will establishprocedures for interested parties toparticipate in the administrative recorddevelopment and that EPA may furnishdocuments which the federal agency iarequired to place in the record.

Response to comments: One commentstated that EPA should be the custodianfor administrative records for federal -facilities, especially whan the federalfacUity I* a PRP. to avoid asy conflict ofinterest in question* ef ItaHStir orlitigation. Another ossmmaetatatad thatth* requirement* si fJWsSJfb) of th*proposed rule Ma^teNrdansnms tofederal sginrtaa s*caajpi1ia| andmaintaiainsilis^Mcefd.

ExecaUia CJJfcsf U9S9 grants federalagencies theasjsJsnfity to "establish th*administratrv* record for selection ofresponse actions for federal facilitiesunder their jurisdiction, custody orcontrol" To avoid the potential forconflicts of interest by federal agencieswho are PRP* and in charge of compilingand maintaining the record. EPA retains

.jr.-..-..-. J - ^ r _ .e .:»•..;.<:D~.er.: ; i T.erecord by specifying w n a t goes .rr.o therecord, by supplementing ihe record indby requiring an accounting of what is inthe record through a report of theindexed contents. EPA believes thatthese requirement* represent sufficientAgency oversight to avoid potentialconflicts of interest at federal facilitieswhile ensunng that federal leadagencies remain responsible forcompiling and maintaining their ownadministrative record.

EPA is making a minor editorialchange in { 300.800(b)CU to reflect thatthe federal agency compiles andmaintains an administrative record for afacility, and not at a facility, sincei 300.800)a) already provides that therecord will be located at or near thatfacility.

Final rule: EPA is promulgating the 'rule as proposed, except for thefollowing minor editorial change in thefirst sentence of | 300.800(b)(l): "If afederal agency other than EPA is thelead agency for a federal facility, thefederal agency shall compile andmaintain the administrative record forthe selection of the response action forthat facility in accordance with thissubpart"

AVanav Section 300 J00(c).Administrative record for state-leadsite*.

Proposed rule: Section 113fk) ofCERCLA state* that the President "shallestablish an sdministrative record uponwhich the President shall base theselection of a response action." Section300.800(0). entitled "Administrativerecord for state-lead sites," requires thatstates compile administrative records,for state-lead sites in accordance withthe NCP.

/iaspoflsa1 to COOUMAISV Severalcommenters believe that the newadminiatrativ* record procedures placean onerous burden on the state, andrequest that state reqiuiamenta such aaOpen Records Acts should b* allowedaa a substitute for compliance with

recommended that states be allowed todetermine whether a completeadministrative record ia ne*dsd at ornear th* site when e site U state-lead.Where a response is taken underCERCLA at a state-lead sit*. EPA isultimately responsible for th* telectionof a response action. Therefore, undersection 113(k). EPA must establish anadministrative record for the CERCLAresponse action at the site, and must ati minimum, comply with subpart LThere may b* many different way* ofcompiling administrative records andinvolving the public in th* development

nun. rr. .in '«<;_. 'err.er. 's :cr ?ec'.:i'.131'*)- Lead ag»?.c;es. .nc.uc.rg sia1-^may provide addi t ional pucucinvolvement opportunities at a s i t e . :?.response to whether or not itates sm-.-imaintain a complete adminis t ra t iverecord at or near the site. EPA believesthat states must have such a record ;norder to meet CERCLA section 1131k)requirements.

EPA has included a minor editors!change in J 300.800(c) to reflect that astate compiles and maintains anadministrative record for rather than ua given site.

Final rule: EPA is promulgating§ 300.800(c] as proposed, except fur aminor editorial change in the firstsentence as follows: "If a state is thelead agency for a site, the state shallcompile and maintain the adnwustrau\»record for the selection of the responseaction for that site in accordance wrjithis subpart."

Name: Sections 300.800(d) and300.800(e). Applicability.

Proposed rule: Section 300.800(d)states that the provisions of subpart Iapply to all remedial actions where theremedial investigation began after thepromulgation of these rules, and for allremovals where the actionmemorandum is signed after thepromulgation of these rules. Section300.800(4) also proposes that "(T;hissubpart applies to all response actionstaken under section 104 of CERCLA orsought secured or orderedadministratively or judicially undersection 105 of CERCLA." Section300.800(e) states that the lead agencywill apply subpart I to all responseactions not included in i 300.800(d) "tothe extent practicable."

Response to comments: Onecommenter argued that the applicableprovisions of subpart i should beamended to require agencies to complywith th* subpart for all sites where theremedy selection decision was mademore man 80 days after proposal of therevised NCP for comment Anothercomment stated that | 300.800(e) berevised to state that lead agencies mustcomply with subpart I in any futureactions they take, and that all leadagency action* muat comply withsubpart I "to the maximum extentpracticable,"

In response. EPA will adhere asclosely as possible to subpart I for siteswhere th* remedial investigation beganbefore these regulations arepromulgated. EPA will not however.require that the** sites comply withrequirements which, because of the

94

,-e : rorr ._i :^j t ;on of these -a;eDe jdhered ;o. For example, under thefinal rule the administrative record filemust be available at the beginning of theremedial investigation phase. If theseregulations are promulgated when a siteis in the middle of the remedialinvestigation process, and theadministrative record is not yetavai lable, the lead agency cannot *t thispoint comply with these regulations.Additionally. EPA believes that addinglanguage to proposed NCP } 300.800(e)to state that lead agencies will complywith provisions of subpnrt I in anvFuture acoon after promulgation of thenew rule is unnecessary and redundant:compliance will b* legally required, andapplicability to all future responseactions is implicit in the rule. Likewise,insertion of the word "maximum" beforethe phrase "extent practicable" isunnecessary since it would giveadditional emphasis but would notsubataniiwiy change the requirement orthe meaning of th* rule.

One comment agreed with EPA'sinterpretation that subpart 1 applies toall response action* "sought, secured orordered admuuatratively or judicially."but other* disagreed. Several stated thatth* term "judicially" should be delatedfrom 1300.400(4) because they arguethat response actions ordered judiciallywould receive de/novo adjudication,instead of administrative record review.CERCLA section 113(fl(l) states: "In soyjudicial action under this Act judicialreview of any issues concerning theadequacy of any response action takenor ordered by the President shall belimited to the administrative record."Commentera content that this section 'does not apply to injunctive actionsunder CERCLA section 106 becausethese are not actions "taken or orderedby the President" To the contrary, theselection of a response action ia a"response sctioo taken * * * by thePresident* Accordingly, section 113UXDrequires that Judicial review of theresponse action selected by the iis "limited to the administrativa iFurther, section 113(j)(2) atfaaimtH «bat"in any judicial action ichapter"—whether for Ienforcamentof aa< *orrecovery of idamage*-* party lioflialfH (0 "thePresident's dadatee is sekcanf th*response action" aniat demonstrate, "onthe administrative] record, that thedecision was arbitrary or caprtdooa orotherwise not in accordance with law."

EPA received several cnmmantsobjecting to EPA's determination thaijudicial review of an andangarmant

iuminu t rauve record. They jiaied ^ h a ias * matter uf administrative aadconstitutional law. a finding of imminentand substantial eodangerraent is not anissue concerning "the adequacy of theresponse action." as stated in CERCLAsection I13(j). and therefore mustreceive de nova review by a court. Asecond comment requested that EPAstate m the regulation that review ofEPA's expenditures in theimplementation of a remedy is de nova.

An assessment of endangerment at asite is a factor highly relevant to theselection of a response action, and is infact part of the remedial investigation(RH process central to the decision toselect a response action. Therefore, thedetermination of endangerment (whichwill generally be included in thedecision document) wilt be included inthe administrative record for selectionof * response action and should bereviewed as part of that record. (EPA,notes thst the term "eftdangennentassessment" document has beensuperseded by the term "riskassessment" document and whileassessments of endangerment at a siteare still conducted during the RL it I* the"risk assessment" document thatbecomes part of the record.) In responseto the comment that Agencyexpenditures on a response sctionshould receive ds> noro review. EPAnotes that this issue was not raised inth* proposed NCP. and is therefore notaddressed in the final role.

Final nits EPA is promulgating therule aa propoaad.

Nasnsf Section 30QJOS. Location of th*adnuniatrativa record file.

Propotod nil* Section 113(k)W ofCERCLA states that "the administrativarecord shall be available to th* public ator near th* facility at issue. Thertesldanl also may place duplicate* ofth* sdministrative record at any otherlocation." Section SOOSM of theproposed NCP providaa five exemptionsfor information which naad not beplaced at or near the facility at <•••«•»gjnapiuigi mmA tMting, data, guidanceAn-MflifBty, publicly available technicalliterature, dccaunants in the rnnflrlantlalportion of the file, and emergencyremoval actiooa Uaonf lass than 30day

F t0 GMDttmmBtmV O*Mr supportad limiting th*

i of information which must belocated at or iMar the sita. but many

i stated that every document

exciâe ôcuaie.-.'J irorr. -e me. T'r.e-.assered that such exc:u»ior.s •inaerrr..-uactive public invo lvement at :he sue d.-,aare contrary to statutory .menu Arotne'rcomment stated that requiring theadministrative record to be kept in t w oplaces, at a central location and at ornear the site, runs counter to thestatutory requirement of keeping arecord only "at or near the facility *tissue.'* One commenter avked that EPAacknowledge that Indian mbalheadquarters may be a logical place '.okeep the administrative record when aSuperfund site is located on or near anIndian reservation. A final commentrequested that EPA endorse throughregulatory language that administrate-?records can be kept on microfiche orother record management technologies.and have the equivalent legal v a l i d i t y topaper records.

Requiring sampling data and guidancedocuments to be placed at the site :sboth unnecessary and. in many cases.very costly. Administrative records areoften kept st public libraries wherespace is limited and cannotaccommodate voluminous sampling datafor large, complex sites. Summaries ofth* data are included in the RI/FS.which is located et or nesr th* site: Inaddition, requiring publicly availabletechnical literature at the site willrequire copying copyrighted material, anadditional expenditure of limitedSuperfund dollars. Moreover. Agencyexperience hi that ae yet relatively fewpeople view th* administrative recordfile et or near the site or request reviewof the tempting data or general guidancedocument* listed in the index to the sitefile.

However. EPA has revised the rale tospecify that If an individual wi*he* toleview a document K*t*d In th* indexbat not available in the file located at ornear m* sit*, soch document if notconfidential, will be provided forinclusion in me fik open newest Theiadtvtdttal will not ne*d to submitsFreedom of Information Act Request inorder to have theinformation madeavailable fat review to dw file near thesita. EPA betieves dwt provision of suchdocuments te dM file near the sit* uponffjojHaat flsaata use ratnnrement of

. CZRCLA section 11300 that the recordb* "available" at or near the site. Inaddittee, this ml* doe* not bar leadagendas fnmdecidmf to place thi*

K«m is >*w *it* *1!t without

contributing, to -ts which

are part of the record, should b* locatedat or n*ar the site and agency

waiting for a request Lead agencies aresôuiaaad to place as much of thisInfnmntinn at nr near His iits ssoracttcaL aajd to aiitftrmîr^y placaiinformation at sitea where there u a

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w i . l oe in aemand or tne mformauon iscen t ra l to the resoonse selectiondecision.

The confidential portion of the fileneed not be located at or near the site,and will not be available upon requesteither at the sit* or at the centrallocation, since the information is notavailable for public review.

EPA beiieves that requiring that therecord be located in two places isnecessary to ensure both adequatepublic access to the record files andbetter lead-agency control over therecord documents. The statutoryrequirement in CERCLA sectionH3(k)( l) states that the President mayalso place duplicates of theadministrative record at any otherlocation. This section clearly providesauthority to maintain a secondadmm:st:ative record at a centrallocation. Section 300.805 of th* proposedNCP (53 FR 51515) reflects EPA'sdecision to make this statutory option aregulatory requirement. A centrallylocated record may offer easier accessto interested parties located far from theresponse site.

EPA agrees with the commenter thathousing the centrally located copy of therecord at Indian tribal headquarters maybe appropriate whan a Superfund site i*located at or near an Indian reservation.In the 1986 amendment* to CERCLA.Indian tribes are accorded statu*equivalent to states, and can bedesignated lead agenciea for responseaction*, in which case they would alsobe required to compile and maintain theadministrative record at or near the site.

Finally, as EPA stated in the preambleto tha proposed NCP. maintaining theadministrative record on microfiche iaalready recognized a* a legally validand effective practice: "EPA may makethe administrative record available tothe'public in microform. EPA maymicroform-copy document* that form th*basis for the selection of a CERCLAresponse action in tha ragatjar coarse ofbusiness" (53 FR SieMO.BA ears** matthis should b* snadjijl Is tisi rala andhas added I 300JBsfifa*DiVafefrjr,providing that mwi*H ejaacy maymake the record aialhbia to microform.

Final nil* Section 300JOS ia modifiedas follows:

1. Section 30DJOoTb) is added to tharule as follow*; "Where documents anplaced in tha central location bat not inth* file located at or mar th* sita. suchdocuments shall be added to tha filelocated at or near tha sita upon requestexcept for documents included in

:. Sect ion 3CC8C5(c| ,s added :c :nerule as follows: 'The lead agency maymake the administrative record fileavailable to the public in microform."

3. The lection has been renumberedaccordingly.

Name: Sections 300.810(aHd).Documents not included in theadministrative record file.

Proposed rule: Section 300.810(b)discusses which documents may beexcluded from the administrative record.Section (c) discusses privilegedinformation that is not included in theadministrative record. Section 300.810(d)discusses confidential information thatis placed in the confidential portion ofthe administrative record.

Response to comments: Onecommenter argued that | 300.810 shouldspecifically include an exemption for

•classified documents related to nationalsecurity. While the NCP currently doesnot address the potential conflictbetween national security concerns andthe requirement to establish s publiclyaccessible administrative record, it isnot clear that such an exemption couldbe adequately specified by rule or thatan exemption would appropriatelyresolve this conflict Section 121(j)provides a national security waiver byPresidential order of any requirementsunder CERCLA. which can be invokedin certain circumstances. Under thisprovision, protection of national securityinterests requires case-by-case reviewunder section 121(j) end not a blanketexemption in the NCP. Nothing in theNCP limits the availability of thiswaiver.

Another comment received by EPAstated that the treatment of privilegedand confidential documents in th*records is unfair, because it deniesaccess to document* that may be criticalto tha (election of a remedy. EPA hasprovided for a confidential portion oftha adminiatretive record when

paragraph f*)(4) of thi* section."

trade secrets of companies that havedeveloped patented daajnjptechnologies being considered aa aresponse selection alternative can b*kept confidential To maintain a fairbalance between the need forconfidentiality aad tha public's right ofreview of th* record, the lead agencymust aummariM or redact a documentcontaining confidential information tomake available to the greatest extantpossible critical, factual informationrelevant to the selection of a resnona*action in th* nonconfidentiai portion ofthe record.

A final comment proposed that anindex to the privileged documentsshould be included in the

nor.cjr.f.den'.ia. pc.".:on ::' -ea d m i n i s t r a t i v e recorc. EPA jgr??sbelieving that an index *u! ;etinterested parties know m g e n e r a : -e—what documents are included ;n :aerecord without compromising theconfidential nature of the i n fo rma t ioncontained in those document*.

Finally. EPA is adding a sentence :ai 300.810(a)(5) to clarify that vhe indexcan include a reference to a group cfdocuments, if documents arecustomarily grouped. This will s i m p : fyEPA'i task without compromising :neintegrity of the record.

Final rule: 1. EPA is promulgatingf § 300.810(b). (c) and (d) as proposedwith a minor editorial change to ciar.fythe first sentence of 3 300.8lO(d).

2. The following language u added toJ 300.810(a|(6) to provide for listinggrouped documents in theadministrative record file index: "Ifdocuments are customarily groupedtogether, as with sampling data chain ofcustody documents, they may be listeda* a group in the index to theadministrative record file."

Name: Section 300.815. Administrativerecord file for a remedial action.

Proposed rule: The term"administrative record file" is usedthroughout the proposed NCP. Section300.815(e) proposes that theadministrative record file be madeavailable for public inspection at thebeginning of the remedial investigationphase.

Response to comments: EPA receivedseveral comments objecting to theconcept of an administrative record file.They objected because there is nostatutory authority for establishing afile, and because they were concernedthat the lead agency could edit the file.specifically by deleting public and PRPcomments and information that do notsupport tb* response sction ultimatelychosen by EPA. and that thesecomments and information would notremain a part of the final administrativerecord.

The stshtte requires tbe President toestablish an administrative record.Under subpart I of th* NCP, theadmini*trative record file is themechanism for compiling, and willcontain, tha administrative recordrequired by section 113(k). One reasonEPA adopted the concept of an•dmini*trativ* reconl file is that EPAfelt that it may be confusing ormulaaHhn to refer to an ongoingcompilation of documents as an"administrative record" until thecompilation la complete. Until theresponse action has been selected, there

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.s no csrr .piete a d m i n i s t r a t i v e record forthat decision. Thus, to avoid creating theimpression that the record is complete atany time pnor to the final selectiondecision, the set of documents isreferred to as the administrative recordfile rather than the administrativerecord.

However, this does not mean, as thecomments appear to suggest, that thelead agency may "edit" theadministrative record file i/i a mannerthat removes comments and technica ldata simply because they are notsupportive of the final selectiondecision. Any comments and technicalinformation placed in the record file fora proposed response action and relevantto the selection of that response action,whether in support of. or in oppositionto. the selected response action, becomepart of the administrative record for thefinal response selection decision. Suchmaterial* will remain in theadministrative record file, and willbecome part of the final administrativerecord. However. EPA believes that as amatter of law documents that areerroneously placed in the administrativerecord file (e.g.. documents that have norelevance to the response selection orthat pertain to an entirely different site)would not necessarily become part ofthe final administrative record.

EPA received additional comment*stating that the adminiatrative recordfile should be available before, thebeginning of the remedial investigationphase. These comments suggested thatthe file be available: When a site isentered into the CERQJS data base:when the HRS score is calculated: whenproposed for inclusion on tha NPL; afterthe preliminary assessment report andafter the remedial sita investigation.

EPA believes that tha point at which asita is entered into th* CERCUS database is too early to put any informationwhich would be relevant to a selectionof a response action into a record filebecause at this point there baa bean nosite evaluation and thatvsms Utttafactual information abonfctmisNe uponwhich to baa* a r*s9eame*mesmoe.Interested parties cam smeesf Bad anyinformation on a *il»sm*wa*md baincluded at the pott et *» HIS scoringandpUcsmanteetelffLiathaNPLdocket which ia prtllcly available. Thapreliminary aaaaassMot and remedialinvestigation stagjaa of a roanou* anpremature for making] tha administrativerecord available: at the** point* there irUttla information relevant to reasons*•election on which to comment or toreview. Once tha RI/FS work plan isapproved, and th* RI/FS atody begins--including such activities aa project

scoping, data co l l ec t ion . T-.SK assessmentand analysis of a l t e rna t ives—(here is acoherent body of site-specificinformation with relevance to theresponse selection upon which tocomment. EPA believes that thebeginning of the RI/FS phase is the pointm the process when i t makes sense tostart a publicly available record ofinformation relevant to the responseselection.

One comment suggested thatinterested persons would have nochance to comment an the formation ofthe RI/FS work plan. The commentsuggested that the record file should beavailable before the RI/FS work plan-isapproved, e.g.. with a draft work plan orstatement of work. EPA disagrees.Approved work plans are oftenamended. An interested person maycomment on the scope or formation ofthe work plan, and such comments canbe taken into account by the leadagency and incorporated into a final oramended work plan. Such comment*must be considered if submitted duringthe comment period on the proposedaction.

Final rule: EPA i* promulgatingI 300.815(a) a* proposed. - .

Name: Section 300415. Adminiatrativerecord file for a remedial action. Section300.820(a). Adminiatrative record file fora removal action.

Proposed rule: Subpart I require* thatthe adminUtrative record for a remedialaction be available for public reviewwhen the remedial investigation begins.Thereafter, relevant document* areplaced in tha record as generated orreceived. The proposed regulations alsorequire that the lead agency publish anewspaper notice announcing thaavailability of tha record files, and asecond notice tr'pm""*'tg that thaproposed plan has been issued. A publiccomment period of at least 30 days larequired on tha proposed plan. Section30Osa(a) outline* tha step* for thaavailability of tha record and publicnornmant for a oon-time-criacal removal

'action, EPA solicitad comments on aproposal ittyund* Idato require quartariy or semi-annual 'notification of record availability andtfrjj initiation of public g«yn»™«qf in theFa

Rtspons* to comments: Somecommenten suggested that tha use ofth* Federal Rafkstar to announce thaavailability of tha administrative recordis too costly or of little or no benefitSeveral commenters requestedclarification on how and whan tha leadagency should respond to comments.Another stated that lead agenda*should be encouraged—though not

required — >o respcr.3 '3 ?i:... :, — ~ - ;before '.he formal corr,rr:e.~.! -e: •>.:begins. '

EPA chose not to require i .-.ot.re ;;availability of the a d m i n i s t r a t i v e -ecc-iin the Federal Register in thisrulemaking because it is s t i l l uncles:whether the benefits of this add i t i ona lnotice outweigh its costs. EPA maydecide in the future to require thisadditional notice if it determir.es '.hatsuch notice would improve no t i f i ca t ion .

EPA agrees with commenters tha tclarification is needed as to wrier. :.ielead agency should respond tocomments. We also agree that the leadagency should be encouraged to respondto comments submitted before the p u b l i ccomment period. EPA generally wallconsider any timely commentscontaining significant information, evenif they are not received during theformal comment period, and encouragesother lead agencies to do so. EPA willstrive to respond to comments itreceives ss esrly as possible, and :oencourage other lead agencies to followsuit However, any lead agency isrequired to consider and respond to or'those comments submitted during aformal comment period. Any othercomments are considered at the leadagency's discretion, EPA has revised thelanguage of these sections to reflect thepolicy on consideration of publiccomment* submitted pnor to publiccomment periods.

One comment recommended that theregulation* should provide how long theadminiatrativ* record must be available.and suggested EPA coordinate effortswith the National Archives aboutretaining the record as a historical

. record. Another felt that materials werenot always placed into th* record in atimely manner, and that the record wasnot always available to the workingpublic during evenings and weekends oraccompanied by a copying machine.Similarly, on* commenter felt thatArTf**1** should be placed in therecord whan they are generated or inprescribed Hm«fr«mi« Of two weeks.Another asked that free copies of keydocument* b* included in the record.

EPA believes that the length of time arecord must be available at or near thesite will b* dependent on site-specificconsiderations such ss ongoing activity.pending litigation and communityinterest EPA also believes that

sometimes encountered byth* working public require resolution ona sita-by-sit* basis and do not merit achange ia the proposed NCP language.Special provisions may have to be madeby th* records coordinator, with the aidof other site team members, including

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. 2 CT_T. ^r..: * .-? d_.- ." .J -cora.ra ' .cr orme manager, to ensure lhat the

record locat ion chosen n cooveaieat tothe public and that copying facilities aremade available. Using public libraries tohouse the record should promote betteravailability of the record during non-working hours and on weekends. Inresponse to mandating deadlines forlead agencies to place documents intothe administrative record file. Agencyguidance already directs recordcompilers to place documents into therecord file as soon as they are received.Agency policy additionally prescribe* asuggested umeframe for placingdocuments in the record file. EPAbelieves that mandatory deadline* inthe NCP would do little to increase iherate at which records are alreadycompiled. The decision to place freecopies of key document* in the record ator near the sit* will be a site-specificdecision based on the level ofcommunity interest in these document*.Those who wish to make copies of keydocument* or any document containedin the administrative record file shouldalready have access to copyingfacilities

EPA received a comment requestingthat it publish a joint notice ofavailability of the adminiatrative recordwith a notice of availability of TechnicalAssistance Grants. Another commentstated that the removal site evaluationand engineering evaluation/costanalysis (EE/CA) must be included mthe record for a non-time-criticalremoval action.

Publishing notice of the availability ofthe record in tandem withannouncements of (he availability ofTechnical Assistance Grants (TAG*) toa good idee where TAG* are available-for a removal action. The TAG*,however, are generally designed tosupport citisan involvement in technicalissues for site* undergoing remedialactions. The one-year. SZ millionlimitations on removals and the Umjtadnumber of slternetivee imske further expense on n Iadvisor less beneficial thsavmsslght b*for e long-tern remedial sjamsB. Aa torplacing th* removal iEE/CA in the iEPA agrees thatdocuments would ha>gert of th*administrative isjjmdlbr tha removalaction.

Finally. EPA is making a minor changeto the language of 1300 J20(a)(4). EPA Issubstituting tha term "decisiondocument" in place of actionmemorandum to allow for situationswhere the agency's decision document

to r u removdj ac'.ioa u not namec &naction memorandum.

Final rule: 1. The Mcood lenience* ofSi 300.81S(b). 300.620UIU) and300.820(b)(2| are revised to reflect thenew language on responding tocomment* as follows: Th, |MC| agencyis encouraged to consider and respond.ss appropriate, to significant commentsthat were submitted pnor to the publiccomment period."

2. In i 300.820(a)(4). the term "decisiondocument" is substituted for "actionmemorandum."

3. The remainder of I 300J20(a) ispromulgated as proposed.

Name: Section 300.820(b).Administrative record file for s removalaction—time-critical and emergency.

Proposed rule: Section 300.820(b)outlines steps for public participationand administrative record availabilityfor time-critical and emergency removalresponses (53 FR S1S16): "Documentsincluded in the edministrative recordfile shall b* made available for publicinspection no later than 90 days afterinitiation of on-site removal activity," atwhich point notification of theavailability of the record must b*published. The lead agency then. as.appropriate, will provide a public * <comment period of not less than 30 dayson the selection of the response action.

Response to comments; Severalcomment* suggested that publiccomment requirements underi 300.620(b) war* unneoaaaary andburdensome, especially tha requirementto publish a notice of tha availability ofthe record. One M""M»t argued matrequiring public notification of bothrecord availability and of a site'sinclusion on th* NPL was unnecessary^HQ QUDuCei'uVsV AJaMtfleY GQflHBs)A*t

stated that tha requirements for publicnotification and public comment are notappropriate for all time-critical removalactions, and rarmmnaiiriad that th*adminictrative record be available farreview eery forthoae ttm*-criticalremoval actions that do require public

stated that tha retirement to publish anotice of availability of th*administrative record for aH time-criticalremoval actions be eliminated in favorof making tha record available but sotreottirittg an advartlseiaant or cceuBentperiod, sue* *om* time-critical removalactions are completed before a publiccomment period could be held. Othersasked that the public comment periodbecome mandatory, or at leastmandatory for removal activities notalready completed at the time tha recordis made available. Another commentrequested that the record become

ava . . ao .e joone:—at .eav 30 :a.s « : ' e :initiation of on-site removs. ac'.iv.Ty—becauce the current 60-day penodprevented the consideration of any pre-work comment*. A second commentsupported the 60-day period. Finally, acommeotar argued that it made littlesense to make the record available after60 days for an emergency responsebecause the on-scene coordinator (OSC)report containing most of the responseinformation isn't required to becompleted until one year following theresponse action.

In general, the public participationrequirement* under i 300^20(b| aredesigned to preserve both the flexibilityand discretion required by the leadagency in time-critical removal actionsituation* a* well a* EPA's commitmentto encouraging public participation andto keeping an affected community well-informed. EPA believe* the notificationand comment penod* required ini 300.820(b) provide for both Agencyflexibility and meaningful publicinvolvement The regulatory languagestating that 'The lead agency shall, a*appropriate, provide a public commentperiod of not lea* than 30 day*"provide* the lead agency neededflexibility when the emergency nature ofjflfmim*tafn.^y Tnk+t holding acomment period infessihls

While EPA believe* that it isnecessary to announce the availabilityof the admini*trative record for tuna-critical and emergency removal action*a* well a* non-time-critical action*. EPAbelieve* that requiring establishment ofthe administrative record and publishinga notice of it* availability 30 day* af tarinitiating a removal action in all cases,instead of "no later than 60 days afterinitiating a removal action." a*proposed, would be somewhatpremature. It baa been EPA'a experiencethat it often takes 60 days to stabilize atits (La, those activities that help toreduce, retard or prevent the spread of ahazardous substance release and help toeliminate an immediate threat). EPAbelieve* that tha overriding task ofemergency response teams during thiscritical period most be the undertakeof necessary stabilization, rather thanadministrative duties. Compiling andadvertising th* record before a sit* hasbecome *t*billzed would divertemergency response teams fromdevoting their fufl attention to aresponse. EPA believes that suchadministrative procedures an better leftfor after sit* stabilization.

Public notice requirement* forannouncing tha availability of theadministrative record end for a site'sinclusion on the NPL are not dupLcauve.

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~ ~ -.'i'. '.'•• 'r,e ;ubi.c of 'wo VP-Vo.::'erent decisions. R e m o v a l ac t ions donot a lways take place at s i tes on (heNPL therefore, the notice requirementsare obviously not duplicative for theseremoval actions. For remedial sites thatare on the NPL the administrativerecord need not be established for sometime af te r l ist ing on'the NPL sopubl ish ing a notice of the availability ofthe record would be essential to makethe affected public cognizant of siteprogress and1 their opportunity forreview of documents included in therecord.

Lastly, the procedures specified ini 300.a;0(b) are applicable to anemergency removal that starts andfinishes within 60 days. However, asprovided in i 300.020(bj(2). a commentperiod is held only where the leadagency deems it appropnate. Butbecause the administrative record is anavenue for public information as well asfor public comment. EPA also believesthat even if the action is completedbefore the record file is made available,it ia still appropriate to make the recordavailable to the public. There is also noinherent contradiction in the OSC reportbeing available one year aftercompletion of the response action whilethe administrative record becomesavailable 60 days after initiation of on-site activities. Since the OSC report is asummary of the site events and is not adocument which ia considered in theselection of response action, it is notgenerally included in the administrativerecord.

Final rule; EPA is promulgatingi 300.820(b) as proposed, except that

1. The second sentence ofi 3O0.820(b)(2) i* revised on respondingto public comments as described above.

2. Section 300.820(b){3) is revisedconsistent with i 300.820(a)(4): the term"action memorandum" is changed to"decision document"

Name: Section 300.829. Recordrequirements after decision document iasigned.

Proposed rule: Section!describes situations whan <msy be added to th* aomam(Bsee>arecord after tha dacMawaJaejimBast lasigned. tocumefUass**1 to added to arecord in tha folloyist SJBTI iniislaiii ssWhen tha 4>cuai**taaaYa*aM a portionof th* decision whs** th* decisiondocument does not addtsss or reservesfor later whan the response actionchanges and an explanation ofsignificant differences or an amendeddecision document ia issued: whan thaagency hold* additional public commentperiod* after tha decision is signed: andwhen the agency receives comments -

c o n ' a i n i n a i ^ n i f i c a n t i n f o r m a l . o n .-.otc o n t a i n e d elsewhere in the record wh icncouid not have been submitted dunngthe public comment penod whichsubstantially support the need tosignificantly alter the response action"(S3 FR 51516). In addition, subpart E ofthe proposed NCP discusses RODamendments and Explanations ofSignificant Differences. Explanations ofSignificant Differences may be used forsignificant changes which do notfundamentally change the remedy, anddo not require public comment. RODamendments must be used forfundamental changes, and require apublic comment penod.

Response to comments: Onecommenter asked that subpart 1 reflectthe factors consistently applied bycourts when determining whether therecord should be supplemented,including such en ten* as Agencyreliance on factors not included in therecord, an incomplete record, and strongevidence that EPA engaged in improperbehavior or acted in bad faith. A relatedcomment stated that since generalprinciples of administrative law apply toadministrative record restrictions andsupplementing the record, languagelimiting supplementing the record shouldbe deleted from the NCP. EPA believesthat including specific tenets ofadministrative law governingsupplementing of the record in the NCPitself is unnecessary. These tenets applyto record review of response sctionswhether or not they are included in theNCP. The requirement* of | 300.825(c)do not supplant principles onsupplementing administrative records.

Another comment recommended thatEPA permit the record to besupplemented with any iuue contestedby a PRP. while granting an objectivethird party the ability to accept or rejectrecord supplements. EPA alreadyrequires that any documents concerningremedy selection submitted by PRP*within the public comment period b*Included in tha "fiorH All significant

• evidence submitted after tha decisiondocument is complete is already 'included In tha record, so long as Umeats the requirements of 1300J2S(c),is not included elsewhere in tha record,could not have been submitted duringtha public comment period, and supportsthe need to significantly altar th*response action. EPA believes th**ecriteria are reasonable and do notrequire tha use of •-third-partyarbitrator.

One comment stated that all PRPsubmissions must be placed in therecord in order to protect a party's due-process right to be heard. EPA disagreesthat all PRP submission* to th* lead

order ;o pro tec t Tie par", s --e ;r- ;a<; irights. The process provicea .n :.-.e ,rules—including the nonce of ',ava i labi l i ty of the proposed p i a n and :.-.eadministrative record for review theavailabili ty of ail documents u n d e r l y i n gthe response selection decision forreview throughout the decis ion-makingprocess, the opportunity to comment onthe proposed plan and all document] inthe administrative record file, therequirement that the lead agencyconsider and respond to all s ign i f i can tPRP comments raised during thecomment penod. the notice of s ign i f i can tchanges to the response selection, andthe opportunity to submit, andrequirement that the lead agencyconsider, any new significantinformation that may substant ia l lysupport the need to significantly al terthe response selection even after theselection decision—is sufficient tosatisfy due process. Moreover, theopportunity provided for PRP and publ icinvolvement in response selectionexceeds the minimum publicparticipation requirements set forth by x~"r

the statute. Placing a reasonable limit \th* length of time in which commentsmuat b* submitted, and providing forca*e-by-cas* acceptance of late ' :comments through t 300.823(c). does no.infringe upon procedural rights of PRPs

One commenter asked that thepermissive "may" in i 300.32S(a) bechanged so there is no lead-agencydiscretion over whether to add to theadministrative record documentssubmitted after the remedy selection.and stated that additional publiccomment periods as outlined in13O0.823(b) should not be only «t EPA soption. A related comment stated thatth* multiple qualifiers in | 300.825(c).including the phrases "substantiallysupport die need" and "significantlyaltar tha response action" (53 FR S1S16).grant EPA overly broad discretionary ^powers over what documents may be ~added to th* record. Th* commentersuggests deleting the word"substantially." aa well aa stating thatall comments, even thoae disregarded byEPA. should be included in the recordfor tha purpose of judicial review. EPAdisagrees that tha word "may" in eitheri 300J2S(a) or 1300J2S(b).is toopermissive. Section 300J2S(b) of theproposal was simply intended to clanfytha lead agency's implicit authority tohold additional public comment periods.in addition to thoa* required undersubpart E for ROD amendment*,whenever tha lead agency decides itwould be appropriat*. Because theseadditional comment period* are not

99

- • : J I . -»L: ?> v a t - i f ~r •es ' j ia t .cn. trieremiss ive language j i m p i y reflect*

t n e .ead 4gency 4 discretion with respect10 these additional public involvementopportunities. Similarly, lead-agencydiscretion to add to the administrativerecord documents submitted after adecision document ha* bean signedprovides the lead agency the option togo beyond the minimum requirementsfor public participation outlined in thes ta tu te . In response to requests to deletethe qualifiers in J 300.825fc). thislanguage is intentionally designed todefine ca r e fu ' i y me circumstances inwhich EPA must consider commentssubmitted aner the response action he*been selected. This standard recognize*CERCLA s mandate to proceedexpedition > to implement selectedresponse acnons. but also recognizestha t there will be certain instance* inwhich significant new informationwarrants reconsideration of the selectedresponse action. Section 300.£25(c) i*intended to provide a reaaonabi* limiton what comment* EPA must review orconsider after a decision ha* been made.

Several commenters requested thatPRPs not identified until after th* closeof the public comment period should beallowed an opportunity to comment onthe record within 60 days of EPA'snotification of potential liability. EPAmakes significant efforts to involve PRPsas early in the procesa a* possible.When PRPs are identified late in theprocesa. they may provide EPA withcomments at that time'. EPA willconsider comment* which are submittedafter th* decision document is signed inaccordance with tiie criteria ofi 300.825(cVTbia U triie no matter whenthe PRP is identified In'the process. EPAbelieves that the current rule iasufficient for granting these late-identified PRPs tha opportunity forsubmitting lata comments for th* record.

One commenter stated that newinformation that confirms orsubstantiate* prior public fneisttnlshould b* made part of tha record, evenafter a ROD is signed. EPA It setrequired by statute or lamtiaalaBit*consider the** coma*eass>eli1isssjh •lead agency may. a*4*iV?mB*\r doe*.consid*rpo*44iOOosmmim*jh>.tconsider* tocase bothagency's part of the record.

to i 3 0 O s V « » additional publiccomment pariadl » dairy that maddition to

record '.:n. Ajuiomjn Jus is wna; EPAintended m the propO4«i. * clanficauonis necessary to ensure consistency.

Final rule.- EPA is promulgatingf 300.829 as proposed except for anaddition to th* last sentence of section(b) as foliowr "All additional comment*lubmitted during such comment penod*that *re responsive to th* request andany response to these comments, alongwith document* supporting the requestand any final decision with respect tothe issue, shell be placed in theadministrative record file."

Subpart r—Use of Dispersants aadOther Chemicals

The following section* discusscomments received on lubpsrt I andEPA's responses.

Name: Sections 300.900-300.fl20.General.

Existing rule: Section 300,81 describedthe purpose and applicability of existingsubpart H (now subpart D. and 1300.82define* the key terms used in th*regulation. Section 30QJ3 provide* thatEPA shall maintain a schedule ofdispersant* and other chemical orbiological product* that may b*authorized for us* on oil discharge*called the "NCP Product Schedule."

Section 300.84 set* forth tha .procedure* by which an OSC mayauthorize th* use of product* listed onth* NCP Product Schedule. Tb* sectionprovides that an OSC with concurrenceof the EPA representative to the RUTand the concurrence of the *tate(i) withjurisdiction over th* navigable waters(a* defined by th* CWAJ polluted by thaoil discharge, may authorize the uae ofdispersant*. surface collecting egenuv Xand biological additive* listed on tha 'NCP Product Schedule.

This section also provide* that If thaOSC determine*that th* use of a

kngth*request for an additional iperiod, aad any decision documentswould b* pieced in th* administrative

biological additiv* hi necessary to .prevent or aubatantiaily reduce « hazardto human Ufa. and dm is uwuVcsaotMltasi tA A*Stm>ie) tarns) gmemVamsmol t*tWU^ttt&nP^M

th* OSC may unilaterally authorize theuse of any product ImtUtiting a productnot on tha NO Product Schedule, nsuch instances, m* OSC must inform OtaEPA RRT representative and thaaffected statas of tha use of a product assoon sspossibk and must obtain theirconcurrence for tha continuad aa* of thaproduct one* th* threat to husiaa Ufahas subsided. This provision elimmatasdelays in potentially life-threateningsituation*. *uch aa spills of highlyflammable-petroiewB products toharbors or near inhabHsd areas.Although they will not be listed on thaSchedule, this section also providaa for

a- 'nor . :3 ' . icn si '".e -se of ;—T..-qaatntj on a case-oy-caie oasis Tie .seof sinning agents is prohibited.

Section 300,84 explicitly encouragesadvance planning for the use ofdispersant* and other chemicals. TheOSC is authorized to approve the use ofdupersants and other chemicals wi thou tthe concurrence of the EPArepresentative to the RRT and theaffected states if these parties havepreviously approved a plan identifyingthe products that may be used and theparticular circumstances under whichtheir use is preauthonzed.

Section 300.85 details the data thatmust be submitted before a dispersant.surface collecting agent, or biologicaladditive may be placed on the NCPProduct Schedule. Section 300.30describes the procedures for placing aproduct on the Product Schedule andalso sets forth requirements designed toavoid possible misrepresentation ormisinterpretation of the meaning of theplacement of a product on the Schedule.including the wording of a disclaimer tobe used in product advertisements ortechnical literature referring toplacement on the Product Schedule.

Appendix C detail* the methods andtype* of apparatus to be used in carryingout the reviled standard dispersanteffectiveness and aquatic toxidty tests.Appendix C also sets forth the formatrequired for summary presentation ofproduct test data.

Proposed rule: Proposed subpart ] isvery similar to subpart H and containsonly minor revisions. Section numbersand references to other sections andsubpart* have been changed whereappropriate. Technical changes andminor wording changes to improveclarity have also been made.

Definitions formerly presented insubpart H have been moved to subpartA. and a new definition has been addedfor miscellaneous oil spill controlagents. Accordingly, a list of datanquiressants far aiaceUaneoua spillcontrol agents is proposed to be sddedto 130OMS. Tha definition for navigablewaters is aa defined in 40 CFR 110.1.

Section 300JUL which addressed"Authorization of as*," was modifiedslightly tat the pcopoaad regulation toemphasis* dw Jmnonsnre of obtainingconcurrence lor me uae of diapenantaand other chsraJrsli from theappropriate *tat* representative* to theRegional Response Team (RRT) and theDOC/DO! natural resource trustees "«*sppropriata.

Retfonee to comments.—\.hirofremeet ofDOC/DOI trustees.Metinr OQimemMntaVV oppQuwd th<inclusion of tha OOC/OOI truatees in

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APPENDIX M

SUBPART I OF NCP

Suseert I—Adn I tar

f 300400 f*ttWM*uiw*M4)«a4iadflwustrsttv* reear*

(a) General requirement, Th* leadagancy soatl establish an administniiv*record that coatains tba documents matform tbe baaa for the salaxoon of aresponse action. Tbe lead asjancr shailcompii* and maincain tha administraav*record in accordance with mis-suopart

(b) Adauustrgave record* for federalfactUueo. (1J If a faderai agency other

federal faoiiry. the federaldie-'

.action for that faculty w accordancewith dus

shall place in th« adn4.m*iratrW recordfile to ansan dut tha sdnunisontrrerecord includes all ctocomann tiut fomth* baaia for tha smiacflon of in* •/)»<,resaons*.,aciion. ,;• ^v* :. . , • ' , ,v , . ,„•. , ; .....

(2) EPA or the UJ. COM Guard shallcompila and auintaui the aoinioJatTadv*record whan it is the laad agancy for » -federal facditT. •*••#*<,•*'.•'•*!>!• • ,> ' fe

(3ltfEPAi»invelvedm tnaislattioaof the raeponss) actice at a fadatai .facility ontite NPL tis* f *^ ageaey-ecting if Trn

workntan. the IU/n reUswed for p»bWc' 1

proooeed plan, aodaayEPA may faousa* ee a

(ct AdxHiintntiv* record 'or trate-teadntn. If a state is the lead agencyfor a site, the state snail compile andmaintain the administrative recnrd forthe selection of the response action forthat site in accordancewith rbissubpart. EPA mayTWjihre the stare toplace additional docarnenn m rheadnumsrrwm rscorli'fflt to ensure rhatthe administrative r»bdrd includes alldocument* which form th* basis for theselection of the response action. Thestate shall provide EPA with a copy ofthe* index of documents included in theadministrative record file, rhe RI/TSworkplaa. the R1/FS released for publiccomment, the oropo*ed pUn. any public

proposed plan, and 'any other documentsEPA may request on a caaa-by-cue' ' ' ' ' ! ' ' '

.... ,™. , i»ubpartappliaeto ell response actions tafcao under•ectfoolM of CERCLA or sought.

; " "": or ordated admiautrmavely orUy under section 106 of CERCLA.

l4tBtlons.whereih«ayasrl|arlfla T«""""- after

the lead agency, ahall comply with thissobpait t» dM extant praeticabl*,

«*a*k*B>*««eil me. • • • - . ^-, ?••

'" («)The laad^ageney shall **tablisa a

forma, aaadaaib* lonatad at or aaar Theriot at U*B*t or M me oantral locadon.

idfibiodicatsemaliilialtaeassl atealahllllj of mi*SSSH^-7wS^w«».»»

101

i ^ i Guidance documents not generatedspecifically for '.he ute at issue need notbe located at or near the site at issue,provided that they are maintained at thecentral location and the index to theadministrative record fil* indicate* thelocanon and availability of theseguidance document*.

(31 Publicly available technicalliteriture not generated for the site atissue, such as engineering textbooks.articles from technical journals, andtoxjcological profiles, need not belocated at or near the site at issue or atthe central location, provided that theliterature is listed in the index to theadmirustrauve record file or theliterature is cited in a document in therecord.

(4) Documents included in theconfidential portion of theadministrative record file snail belocated only in the central location.

(S; The administrative record for aremoval action where the release orthreat of release requires that on-siteremoval activities be initiated withinhours of the lead agency's determinationthat a removal is appropriate and on-site removal activities cea*e within 30day* of initiation, need be available forpublic inspection only at the centrallocation.

(b) Where documents are placed hithe central location but not in the filelocated at or near the site, suchdocument* shall be added to the filelocated at or near die lite upon requestexcept for documents included Inparagraph (*)(4) of thia section.

(c) The lead agency may make thepdministntive record file avertable tothe public in microform.5300J10 Contents of me irecord me.

(a) Contents. The administrativarecord fil* for selection of a respona*action typically, but not in all cases, willcontain the following type* ofdocuments.

(l) Documents contsdajBg factualinformation, data and asslBebi of th*factual information, emt east that mayform a basis for tesmlimttaBof aresponse action, foam eMSsBants mayinclude v4jrifMaim*Jim»jdata. qualitycontrol and Ofsjem^fejsevtocedocuaientatios. csata of custody forms,site m*peetio» reports, preliminaryassessment asd sita evaluation reports.ATSDR health sssastimnt., documentssupporting th* lead agency'sdetermination of 'fipfr***1* ifr*isubstantial endangerment. public healthevaluations* and technical andengineering evaluations. In addition, forremedial actions, such document* mayinclude approved workplan* for th*

remedial investigation/feasibility study.state documentation of applicable orrelevant and appropriate requirements.and the RI/FS:

(2) Guidance documents, technicalliterature, and site-specific policymemoranda that may form a basis forthe selection of the response action.Such documents may include guidanceon conducting remedial investigationsand feasibility studies, guidance ondetermining applicable or relevant andappropriate requirements, guidance onrisk/exposure assessments, engineeringhandbooks, articles from technicaljournals, memoranda on the applicationof a specific regulation to a site, andmemoranda on off-site disposalcapacity;

(3) Documents received, published, ormade available to the public under{ 300.615 for remedial actions, orf 300.620 for removal actions. Suchdocument* m*y include notice ofavailability of the administrative recordfile, community relations pian. proposedplan for remedial action, notices ofpublic comment periods, publiccomment* snd information received bythe lead agency, and responses tosignificant comments;

(4) Decision documents. Suchdocuments may include actionmemoranda and record* of decision;

(5) Enforcement orders. Such - •documents may include administrativeorders and consent decrees; and

(6) An index of th* document*included in the administrative recordfile. If documents an customarilygrouped together, aa with sampling datachain of custody documents, they maybe listed as a group in th* index to theadministrative record file.

(b) Documents not included in theadministrative record file. Tha leadagency ia not required to includedocuments in th* sdminismtiv* recordfile which do not form a basis for tha•aUction of tha response action. Suchdocument* include bat are not limited todraft document*, internal inaniotanda,and day-to-day notes of staff unlesssuch d o n tthat form* the basis of selection of meresponse action and tha Information ianot included in any other document in

(c) Privileged documents. Privilegeddocument* shall not be included In therecord file except as provided inparagraph (d) of this section or wheresuch privilege is waived. Privilegeddocument* include but are not limitad todocument* subject to th* sttorney-dientattorney work product deliberativeprocess, or other applicable privilege.

(d) Confidential file. If informationwhich form* the baaia for tha •election

of a response action ;s :r.c:-..ii>2 :- •. -a document containing conf.aer.t:a. ;•privileged information and is miotherwise available to the publ ic , '.heinformation, to the extent feas ible sra .1be summarized in such a way as tomake it disclosable and the surr.rr.aryshall be placed in the publicly a v a i i a U eportion of the administrative record :".:».The confidential or privileged documentitself shall be placed in the confidentialportion of the administrative record f.le.If information, such as confidentialbusiness information, cannot besummarized in a disclosable manner.the information shall be placed only mthe confidential portion of theadministrative record file. Alldocuments contained in the confidentialportion of the administrative record fileshall be listed in the index to the Hie.

(300J15 Aomtnlatratlve record m« for •

(a) The administrative record file forthe selection of a remedial action shallbe made available for public inspectionat the commencement of the remedialinvestigation phase. At such tune, thelead agency shall publish in a majorlocal newspaper of general circulation anotice of the availability of theadministrative record file.

(b) Th* lead agency shall provide apublic comment penod as specified ini 300.430(0(3) so that interested personsmay submit comment* on the selectionof the remedial action for inclusion inthe adminutrative record file. The leadagency ia encouraged to consider andrespond t* appropriate to significantcomments that were submitted prior tothe public comment period. A writtenresponse to significant comment*submitted during the public commentperiod shall be included in th*administrative record file.

(c) The lead agency shall comply withthe public participation procedure*required in 1 300.430(0(3) snd shalldocument such compliance in the

(d) Documents generated or receivedafter th* record of decision is signedshall be added to the administrativerecord file only as provided in { 300.825.

§ 3*MA*fei AflMMmVlfetMIVO l"e)OOrt fH*J fOC •

(a) If, based on th* site evaluation, thelead agency determines that a removalaction is appropriate and that a planningperiod of et least six month* exist*before on-site removal activities must beinitiated:

(1) The adminutrative record file shallbe made available for public inspectionwhen the engineering evaluation/cost

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Federal Register V > 46 •' T h u r s d a y M a r c h 6. '.990 ' R - j i e s i.-.d see;

ana lys i s (EE/CA) is made ava i l ab le forpuo l i c comment. At such time, the leadAgency shall publish m a maior localnewspaper of general circulation anotice of the ava i l ab i l i ty of thea d m i n i s t r a t i v e record file.

(2) The lead agency shall provide ap u b l i c comment period as specified in5 300.415 so t h a t interested persons maysubmi t comments on the selection of theremoval action for inclusion in theadmin is t ra t ive record file. The leadagency is encouraged to consider andrespond, as appropriate, to significantcomments that were submitted prior tome public comment penod. A writtenresponse to significant commentssubmitted during the public commentpenod shall be included in theadministrative record file.

(3) The lead agency shall comply withthe public participation procedures of§ 300.4lS(m| and shall documentcompliance with } 300.41S(m|(3)(i)through (iii) in the administrative recordfile.

(4) Document* generated or receivedafter the decision document is signedshall be added to the administrativerecord file only aa provided in { 300523.

(b) For all removal action* notincluded in paragraph (a) of this section:

(1) Documents included in theadministrative record file shall be madeavailable for public inspection no Laterthan BO days after initiation of on-siteremoval activity. At such time, the leedagency shall publish in a major localnewspaper of general circulation anotice of availability of theadministrative record file.

(2) The leed agency shall asappropriate, provide a public commentperiod of not less than 30 days beginningat the time the- adminiatrative record fileis made available to the public The leadagency ia encouraged to consider andrespond, a* appropriate, tocomment* that were submitted prior toth* public comment period. A <response to significant <submitted during the pubataiperiod shall be included hi iadministrative record fit*.

(3) Document* gtmrajiad «after the decision doaaoMnt ia signedshall b* added to the administrativerecord file only as provided in 1 30O&25.

f

(a) The lead agency may adddocuments to the adminiatrative recordfile after the decuion documentselecting the response action has beensigned if:

(1) The documents concern a portionof a response sction decision that the

decision document does not address orreserves to be decided at a la ter date: or

(2) An explanation of s igni f icantdifferences required by 5 300.435(c], oran amended decision document isissued, in which case, the exp lana t ion ofsignif icant differences or amendeddecision document and all documentsthat form the basis for the decision tomodify the response action shall beadded to the administrative record file.

(b) The lead agency may holdadditional public comment periods orextend the time for the submission ofpublic comment after a decisiondocument has been signed on any issuesconcerning selection of the responseaction. Such comment shall be Limited tothe issues for which the lead agency hasrequested additional comment. Alladditional comments submitted duringsuch comment periods that areresponsive to the request, and anyresponse to these comments, along withdocuments supporting the request andany final decision with respect to theissue, shall b* placed in theadministrative record file.

(c) The lead agency ia required toconsider comments submitted byinterested persons sfter the dose of thepublic comment period only to theextent that the comment* containsignificant information not containedelsewhere in the adminiatrative recordfile which could not have beensubmitted during the public commentperiod and which substantially supportthe need to significantly alter the . •response sction. All such comment* andany responses thereto shall be placed inthe administrative record file.

SuepertJ— U«a iof Otapersent* and

(»} Section 311(c)(2)(G) of the deanWater Act requires that EPA prepare aschedule of disparsants and otherchemicals, if any. that may b* used incarrying out tha NCP. This subpartmakes provisions for such a schedule.

(b) This subpart applies to thenavigable waters of th* United Statesand adjoining shorelines, th* waters ofth* contiguous ion*, and th* high sea*beyond the contiguous zone inconnection with activities under th*Outer Continental Shelf Lands Actactivities under the Deepwatar Port Actof 1974, or activities that may affectnatural resources belonging to,appertaining to. or under the exclusivemanagement authority of the UnitedStates, including resources under th*Magmuon Fishery Conservation andManagement Act of 197&

(c| This subpart a p p l i e s to ' h e ,sc ->'any themicai agents or o ine r aaa; ' ; - , esas defined in subpart A of t h i s sar •?.*:may be used to remove or c o n t r o l o i ldischarges.

5 300.905 NCP Product Sch*dul«.

(a) Oil Discharges. (1) EPA s h a l lmainta in a schedule of dispersants ar.dother chemical or biological productsthat may be authorized for use on o i ldischarges in accordance w i t h theprocedures set forth in 5 300.910. Th;sschedule, called the .NCP ProductSchedule, may be obtained from theEmergency Response Division (OS-2'.O).U.S. Environmental Protection Agency.Washington. DC 20460. The te iepnonenumber is 1-202-382-2190.

(2) Products may be added to the NCPProduct Schedule by the processspecified in | 300.920.

(b) Hazardous Substance He/eases(Reserved).

330QJ10 Aumortzaoon o( use.

(a) The OSC. with the concurrence ofthe EPA representative to the RRT and. 'aa appropriate, the concurrence of theRRT representatives from the stateswith jurisdiction over the navigablewaters threstened by the release ordischarge, and in consultation with theDOC and DOl natural resource trustees.when practicable, may authorize the useof dispersants. surface collecting agents.biological additives, or miscellaneous CM Ispill control agents on the oil discharge.provided that the diapersanu. surfacecollecting agents, biological additives, ormiscellaneous oil spill control agents arelisted on the NCP Product Schedule.

(b) The OSC with the concurrence ofthe EPA representative to the RRT and.as appropriate, the concurrence of theRRT representatives from the state*with jurisdiction over the navigablewaters threatened by the release ordischarge, and in consultstion with theDOC and DO! natural resource trustees.whan practicable, may authorize the useof burning agent* on • ca*e-by-ca*ebasis.

(c) The OSC may authorize the use ofany dispersant surface collecting agent.other chemical agent burning agentbiological additive, or miscellaneous oilspill control agent Including productsnot listed on tha NCP Product Schedule.without obtaining th* concurrence of theEPA representative-to the RRT. the RRTrepresentative* from the state* withjurisdiction over the navigable watersthreatened by the release or discharge.when, in th* judgment of the OSC theuse of the product is necessary toprevent or substantially reduce a hazardto human Ufa. The OSC is to inform the

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EPA - FINAL GUIDANCE ON ADMINISTRATIVE …Administrative Records for Selecting CERCLA Response...

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Transcript of EPA - FINAL GUIDANCE ON ADMINISTRATIVE …Administrative Records for Selecting CERCLA Response...