33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p.193.
The purpose of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) is to provide the organizational structure and procedures for preparing for and responding to discharges of oil and releases of hazardous substances, pollutants, and contaminants.
The NCP is required by section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9605, as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. 99-499, (hereinafter CERCLA), and by section 311(d) of the Clean Water Act (CWA), 33 U.S.C. 1321(d), as amended by the Oil Pollution Act of 1990 (OPA), Pub. L. 101-380. In Executive Order (E.O.) 12777 (56 FR 54757, October 22, 1991), the President delegated to the Environmental Protection Agency (EPA) the responsibility for the amendment of the NCP. Amendments to the NCP are coordinated with members of the National Response Team (NRT) prior to publication for notice and comment. This includes coordination with the Federal Emergency Management Agency (FEMA) and the Nuclear Regulatory Commission in order to avoid inconsistent or duplicative requirements in the emergency planning responsibilities of those agencies. The NCP is applicable to response actions taken pursuant to the authorities under CERCLA and section 311 of the CWA, as amended.
(a) The NCP applies to and is in effect for:
(1) Discharges of oil into or on the navigable waters of the United States, on the adjoining shorelines, the waters of the contiguous zone, into waters of the exclusive economic zone, or that may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States (See sections 311(c)(1) and 502(7) of the CWA).
(2) Releases into the environment of hazardous substances, and pollutants or contaminants which may present an imminent and substantial danger to public health or welfare of the United States.
(b) The NCP provides for efficient, coordinated, and effective response to
(1) The national response organization that may be activated in response actions. It specifies responsibilities among the federal, state, and local governments and describes resources that are available for response.
(2) The establishment of requirements for federal, regional, and area contingency plans. It also summarizes state and local emergency planning requirements under SARA Title III.
(3) Procedures for undertaking removal actions pursuant to section 311 of the CWA.
(4) Procedures for undertaking response actions pursuant to CERCLA.
(5) Procedures for involving state governments in the initiation, development, selection, and implementation of response actions, pursuant to CERCLA.
(6) Listing of federal trustees for natural resources for purposes of CERCLA and the CWA.
(7) Procedures for the participation of other persons in response actions.
(8) Procedures for compiling and making available an administrative record for response actions.
(9) National procedures for the use of dispersants and other chemicals in removals under the CWA and response actions under CERCLA.
(c) In implementing the NCP, consideration shall be given to international assistance plans and agreements, security regulations and responsibilities based on international agreements, federal statutes, and executive orders. Actions taken pursuant to the provisions of any applicable international joint contingency plans shall be consistent with the NCP, to the greatest extent possible. The Department of State shall be consulted, as appropriate, prior to taking any action which may affect its activities.
(d) Additionally, the NCP applies to and is in effect when the Federal Response Plan and some or all its Emergency Support Functions (ESFs) are activated.
(a)
Reference is made in the NCP to both the Nuclear Regulatory Commission and the National Response Center. In order to avoid confusion, the NCP will spell out Nuclear Regulatory Commission and use the abbreviation “NRC” only with respect to the National Response Center.
(b)
Terms not defined in this section have the meaning given by CERCLA, the OPA, or the CWA.
(1) All waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters
(2) Interstate waters, including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, and wetlands, the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters;
(i) That are or could be used by interstate or foreign travelers for recreational or other purposes;
(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce;
(iii) That are used or could be used for industrial purposes by industries in interstate commerce;
(4) All impoundments of waters otherwise defined as navigable waters under this section;
(5) Tributaries of waters identified in paragraphs (a) through (d) of this definition, including adjacent wetlands; and
(6) Wetlands adjacent to waters identified in paragraphs (a) through (e) of this definition: Provided, that waste treatment systems (other than cooling ponds meeting the criteria of this paragraph) are not waters of the United States.
(7) Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.
(1) Vessels—In the case of a vessel, any person owning, operating, or demise chartering the vessel.
(2) Onshore Facilities—In the case of an onshore facility (other than a pipeline), any person owning or operating the facility, except a federal agency, state, municipality, commission, or political subdivision of a state, or any interstate body, that as the owner transfers possession and right to use the property to another person by lease, assignment, or permit.
(3) Offshore Facilities—In the case of an offshore facility (other than a pipeline or a deepwater port licensed under the Deepwater Port Act of 1974 (33 U.S.C. 1501 et seq.)), the lessee or permittee of the area in which the facility is located or the holder of a right of use and easement granted under applicable state law or the Outer Continental Shelf Lands Act (43 U.S.C. 1301-1356) for the area in which the facility is located (if the holder is a different person than the lessee or permittee), except a federal agency, state, municipality, commission, or political subdivision of a state, or any interstate body, that as owner transfers possession and right to use the property to another person by lease, assignment, or permit.
(4) Deepwater Ports—In the case of a deepwater port licensed under the Deepwater Port Act of 1974 (33 U.S.C. 1501-1524), the licensee.
(5) Pipelines—In the case of a pipeline, any person owning or operating the pipeline.
(6) Abandonment—In the case of an abandoned vessel, onshore facility, deepwater port, pipeline, or offshore facility, the person who would have been responsible parties immediately prior to the abandonment of the vessel or facility.
(1) Minor discharge means a discharge to the inland waters of less than 1,000 gallons of oil or a discharge to the coastal waters of less than 10,000 gallons of oil.
(2) Medium discharge means a discharge of 1,000 to 10,000 gallons of oil to the inland waters or a discharge of 10,000 to 100,000 gallons of oil to the coastal waters.
(3) Major discharge means a discharge of more than 10,000 gallons of oil to the inland waters or more than 100,000 gallons of oil to the coastal waters.
(1) Minor release means a release of a quantity of hazardous substance(s), pollutant(s), or contaminant(s) that poses minimal threat to public health or welfare of the United States or the environment.
(2) Medium release means a release not meeting the criteria for classification as a minor or major release.
(3) Major release means a release of any quantity of hazardous substance(s), pollutant(s), or contaminant(s) that poses a substantial threat to public health or welfare of the United States or the environment or results in significant public concern.
(1) Organic products—
(i) Peat moss or straw;
(ii) Cellulose fibers or cork;
(iii) Corn cobs;
(iv) Chicken, duck, or other bird feathers.
(2) Mineral compounds—
(i) Volcanic ash or perlite;
(ii) Vermiculite or zeolite.
(3) Synthetic products—
(i) Polypropylene;
(ii) Polyethylene;
(iii) Polyurethane;
(iv) Polyester.
(1) is a vessel of the United States;
(2) operates on the navigable waters; or
(3) transfers oil or hazardous material in a place subject to the jurisdiction of the United States.
As used in this regulation, words in the singular also include the plural and words in the masculine gender also include the feminine and vice versa, as the case may require.
In computing any period of time prescribed or allowed in these rules of practice, except as otherwise provided, the day of the event from which the designated period begins to run shall not be included. Saturdays, Sundays, and federal legal holidays shall be included. When a stated time expires on a Saturday, Sunday, or legal holiday, the stated time period shall be extended to include the next business day.
In Executive Orders 12580 and 12777, the President delegated certain functions and responsibilities vested in him by the CWA, CERCLA, and the OPA.
(a) Federal agencies should:
(1) Plan for emergencies and develop procedures for addressing oil discharges and releases of hazardous substances, pollutants, or contaminants;
(2) Coordinate their planning, preparedness, and response activities with one another;
(3) Coordinate their planning, preparedness, and response activities with affected states, local governments, and private entities; and
(4) Make available those facilities or resources that may be useful in a response situation, consistent with agency authorities and capabilities.
(b) Three fundamental kinds of activities are performed pursuant to the NCP:
(1) Preparedness planning and coordination for response to a discharge of oil or release of a hazardous substance, pollutant, or contaminant;
(2) Notification and communications; and
(3) Response operations at the scene of a discharge or release.
(c) The organizational elements created to perform these activities are:
(1) The NRT, responsible for national response and preparedness planning, for coordinating regional planning, and for providing policy guidance and support to the Regional Response Teams (RRTs). NRT membership consists of representatives from the agencies specified in § 300.175(b).
(2) RRTs, responsible for regional planning and preparedness activities before response actions, and for providing advice and support to the OSC or RPM when activated during a response. RRT membership consists of designated representatives from each federal agency participating in the NRT together with state and (as agreed upon by the states) local government representatives.
(3) The OSC and the RPM, primarily responsible for directing response efforts and coordinating all other efforts at the scene of a discharge or release. The other responsibilities of OSCs and RPMs are described in § 300.135.
(4) Area Committees, responsible for developing, under direction of the OSC, ACPs for each area designated by the President. Responsibilities of Area Committees are described in § 300.205(c).
(d) The basic framework for the response management structure is a system (e.g., a unified command system) that brings together the functions of the Federal Government, the state government, and the responsible party to achieve an effective and efficient response, where the OSC maintains authority.
(e)(1) The organizational concepts of the national response system are depicted in the following Figures 1a and 1b:
(2) The standard federal regional boundaries (which are also the geographic areas of responsibility for the RRTs) are shown in the following Figure 2:
(3) The USCG District boundaries are shown in the following Figure 3:
National planning and coordination is accomplished through the NRT.
(a) The NRT consists of representatives from the agencies named in § 300.175(b). Each agency shall designate a member to the team and sufficient alternates to ensure representation, as agency resources permit. The NRT will consider requests for membership on the NRT from other agencies. Other agencies may request membership by forwarding such requests to the chair of the NRT.
(b) The chair of the NRT shall be the representative of EPA and the vice chair shall be the representative of the USCG, with the exception of periods of activation because of response action. During activation, the chair shall be the member agency providing the OSC/RPM. The vice chair shall maintain records of NRT activities along with national, regional, and area plans for response actions.
(c) While the NRT desires to achieve a consensus on all matters brought before it, certain matters may prove unresolvable by this means. In such cases, each agency serving as a participating agency on the NRT may be accorded one vote in NRT proceedings.
(d) The NRT may establish such bylaws and committees as it deems appropriate to further the purposes for which it is established.
(e) The NRT shall evaluate methods of responding to discharges or releases; shall recommend any changes needed in the response organization; and shall recommend to the Administrator of EPA changes to the NCP designed to improve the effectiveness of the national response system, including drafting of regulatory language.
(f) The NRT shall provide policy and program direction to the RRTs.
(g) The NRT may consider and make recommendations to appropriate agencies on the training, equipping, and protection of response teams and necessary research, development, demonstration, and evaluation to improve response capabilities.
(h) Direct planning and preparedness responsibilities of the NRT include:
(1) Maintaining national preparedness to respond to a major discharge of oil or release of a hazardous substance, pollutant, or contaminant that is beyond regional capabilities;
(2) Publishing guidance documents for preparation and implementation of SARA Title III local emergency response plans;
(3) Monitoring incoming reports from all RRTs and activating for a response action, when necessary;
(4) Coordinating a national program to assist member agencies in preparedness planning and response, and enhancing coordination of member agency preparedness programs;
(5) Developing procedures, in coordination with the NSFCC, as appropriate, to ensure the coordination of federal, state, and local governments, and private response to oil discharges and releases of hazardous substances, pollutants, or contaminants;
(6) Monitoring response-related research and development, testing, and evaluation activities of NRT agencies to enhance coordination, avoid duplication of effort, and facilitate research in support of response activities;
(7) Developing recommendations for response training and for enhancing the coordination of available resources among agencies with training responsibilities under the NCP;
(8) Reviewing regional responses to oil discharges and hazardous substance, pollutant, or contaminant releases, including an evaluation of equipment readiness and coordination among responsible public agencies and private organizations; and
(9) Assisting in developing a national exercise program, in coordination with the NSFCC, to ensure preparedness and coordination nationwide.
(i) The NRT will consider matters referred to it for advice or resolution by an RRT.
(j) The NRT should be activated as an emergency response team:
(1) When an oil discharge or hazardous substance release:
(i) Exceeds the response capability of the region in which it occurs;
(ii) Transects regional boundaries; or
(iii) Involves a substantial threat to the public health or welfare of the United States or the environment, substantial amounts of property, or substantial threats to natural resources;
(2) If requested by any NRT member.
(k) When activated for a response action, the NRT shall meet at the call of the chair and may:
(1) Monitor and evaluate reports from the OSC/RPM and recommend to the OSC/RPM, through the RRT, actions to combat the discharge or release;
(2) Request other federal, state, and local governments, or private agencies, to provide resources under their existing authorities to combat a discharge or release, or to monitor response operations; and
(3) Coordinate the supply of equipment, personnel, or technical advice to the affected region from other regions or districts.
(a) Regional planning and coordination of preparedness and response actions is accomplished through the RRT. In the case of a discharge of oil, preparedness activities will be carried out in conjunction with Area Committees, as appropriate. The RRT agency membership parallels that of the NRT, as described in § 300.110, but also includes state and local representation. The RRT provides:
(1) The appropriate regional mechanism for development and coordination of preparedness activities before a response action is taken and for coordination of assistance and advice to the OSC/RPM during such response actions; and
(2) Guidance to Area Committees, as appropriate, to ensure inter-area consistency and consistency of individual ACPs with the RCP and NCP.
(b) The two principal components of the RRT mechanism are a standing team, which consists of designated representatives from each participating federal agency, state governments, and local governments (as agreed upon by the states); and incident-specific teams formed from the standing team when the RRT is activated for a response. On incident-specific teams, participation by the RRT member agencies will relate to the technical nature of the incident and its geographic location.
(1) The standing team's jurisdiction corresponds to the standard federal regions, except for Alaska, Oceania in the Pacific, and the Caribbean area, each of which has a separate standing RRT. The role of the standing RRT includes communications systems and procedures, planning, coordination, training, evaluation, preparedness, and related matters on a regionwide basis. It also includes coordination of Area Committees for these functions in areas within their respective regions, as appropriate.
(2) The role of the incident-specific team is determined by the operational requirements of the response to a specific discharge or release. Appropriate levels of activation and/or notification of the incident-specific RRT, including participation by state and local governments, shall be determined by the designated RRT chair for the incident, based on the RCP. The incident-specific RRT supports the designated OSC/RPM. The designated OSC/RPM directs response efforts and coordinates all other efforts at the scene of a discharge or release.
(c) The representatives of EPA and the USCG shall act as co-chairs of RRTs except when the RRT is activated. When the RRT is activated for response actions, the chair shall be the member agency providing the OSC/RPM.
(d) Each participating agency should designate one member and at least one alternate member to the RRT. Agencies whose regional subdivisions do not correspond to the standard federal regions may designate additional representatives to the standing RRT to ensure appropriate coverage of the standard federal region. Participating states may also designate one member and at least one alternate member to the RRT. Indian tribal governments may arrange for representation with the RRT appropriate to their geographical location. All agencies and states may also provide additional representatives as observers to meetings of the RRT.
(e) RRT members should designate representatives and alternates from their agencies as resource personnel for RRT activities, including RRT work planning, and membership on incident-specific teams in support of the OSCs/RPMs.
(f) Federal RRT members or their representatives should provide OSCs/
(g) RRT members should nominate appropriately qualified representatives from their agencies to work with OSCs in developing and maintaining ACPs.
(h) Affected states are encouraged to participate actively in all RRT activities. Each state governor is requested to assign an office or agency to represent the state on the appropriate RRT; to designate representatives to work with the RRT in developing RCPs; to plan for, make available, and coordinate state resources; and to serve as the contact point for coordination of response with local government agencies, whether or not represented on the RRT. The state's RRT representative should keep the State Emergency Response Commission (SERC), described in § 300.205(d), apprised of RRT activities and coordinate RRT activities with the SERC. Local governments are invited to participate in activities on the appropriate RRT as provided by state law or as arranged by the state's representative. Indian tribes are also invited to participate in such activities.
(i) The standing RRT shall recommend changes in the regional response organization as needed, revise the RCP as needed, evaluate the preparedness of the participating agencies and the effectiveness of ACPs for the federal response to discharges and releases, and provide technical assistance for preparedness to the response community. The RRT should:
(1) Review and comment, to the extent practicable, on local emergency response plans or other issues related to the preparation, implementation, or exercise of such plans upon request of a local emergency planning committee;
(2) Evaluate regional and local responses to discharges or releases on a continuing basis, considering available legal remedies, equipment readiness, and coordination among responsible public agencies and private organizations, and recommend improvements;
(3) Recommend revisions of the NCP to the NRT, based on observations of response operations;
(4) Review OSC actions to ensure that RCPs and ACPs are effective;
(5) Encourage the state and local response community to improve its preparedness for response;
(6) In coordination with Area Committees and in accordance with any applicable laws, regulations, or requirements, conduct advance planning for use of dispersants, surface washing agents, surface collecting agents, burning agents, bioremediation agents, or other chemical agents in accordance with subpart J of this part;
(7) Be prepared to provide response resources to major discharges or releases outside the region;
(8) Conduct or participate in training and exercises as necessary to encourage preparedness activities of the response community within the region;
(9) Meet at least semiannually to review response actions carried out during the preceding period, consider changes in RCPs, and recommend changes in ACPs;
(10) Provide letter reports on RRT activities to the NRT twice a year, no later than January 31 and July 31. At a minimum, reports should summarize recent activities, organizational changes, operational concerns, and efforts to improve state and local coordination; and
(11) Ensure maximum participation in the national exercise program for announced and unannounced exercises.
(j)(1) The RRT may be activated by the chair as an incident-specific response team when a discharge or release:
(i) Exceeds the response capability available to the OSC/RPM in the place where it occurs;
(ii) Transects state boundaries;
(iii) May pose a substantial threat to the public health or welfare of the United States or the environment, or to regionally significant amounts of property; or
(iv) Is a worst case discharge, as described in § 300.324. RCPs shall specify detailed criteria for activation of RRTs.
(2) The RRT will be activated during any discharge or release upon a request from the OSC/RPM, or from any RRT representative, to the chair of the RRT. Requests for RRT activation shall later be confirmed in writing. Each representative, or an appropriate alternate, should be notified immediately when the RRT is activated.
(3) During prolonged removal or remedial action, the RRT may not need to be activated or may need to be activated only in a limited sense, or may need to have available only those member agencies of the RRT who are directly affected or who can provide direct response assistance.
(4) When the RRT is activated for a discharge or release, agency representatives shall meet at the call of the chair and may:
(i) Monitor and evaluate reports from the OSC/RPM, advise the OSC/RPM on the duration and extent of response, and recommend to the OSC/RPM specific actions to respond to the discharge or release;
(ii) Request other federal, state, or local governments, or private agencies, to provide resources under their existing authorities to respond to a discharge or release or to monitor response operations;
(iii) Help the OSC/RPM prepare information releases for the public and for communication with the NRT;
(iv) If the circumstances warrant, make recommendations to the regional or district head of the agency providing the OSC/RPM that a different OSC/RPM should be designated; and
(v) Submit pollution reports to the NRC as significant developments occur.
(5) At the regional level, a Regional Response Center (RRC) may provide facilities and personnel for communications, information storage, and other requirements for coordinating response. The location of each RRC should be provided in the RCP.
(6) When the RRT is activated, affected states may participate in all RRT deliberations. State government representatives participating in the RRT have the same status as any federal member of the RRT.
(7) The RRT can be deactivated when the incident-specific RRT chair determines that the OSC/RPM no longer requires RRT assistance.
(8) Notification of the RRT may be appropriate when full activation is not necessary, with systematic communication of pollution reports or other means to keep RRT members informed as to actions of potential concern to a particular agency, or to assist in later RRT evaluation of regionwide response effectiveness.
(k) Whenever there is insufficient national policy guidance on a matter before the RRT, a technical matter requiring solution, a question concerning interpretation of the NCP, or a disagreement on discretionary actions among RRT members that cannot be resolved at the regional level, it may be referred to the NRT, described in § 300.110, for advice.
(a) The OSC/RPM directs response efforts and coordinates all other efforts at the scene of a discharge or release. As part of the planning and preparedness for response, OSCs shall be predesignated by the regional or district head of the lead agency. EPA and the USCG shall predesignate OSCs for all areas in each region, except as provided in paragraphs (c) and (d) of this section. RPMs shall be assigned by the lead agency to manage remedial or other response actions at NPL sites, except as provided in paragraphs (c) and (d) of this section.
(1) The USCG shall provide OSCs for oil discharges, including discharges from facilities and vessels under the jurisdiction of another federal agency, within or threatening the coastal zone. The USCG shall also provide OSCs for the removal of releases of hazardous substances, pollutants, or contaminants into or threatening the coastal zone, except as provided in paragraph (b) of this section. The USCG shall not provide predesignated OSCs for discharges or releases from hazardous waste management facilities or in similarly chronic incidents. The USCG shall provide an initial response to discharges or releases from hazardous waste management facilities within
(2) EPA shall provide OSCs for discharges or releases into or threatening the inland zone and shall provide RPMs for federally funded remedial actions, except in the case of state-lead federally funded response and as provided in paragraph (b) of this section. EPA will also assume all remedial actions at NPL sites in the coastal zone, even where removals are initiated by the USCG, except as provided in paragraph (b) of this section.
(b) In general, USCG Captains of the Port (COTP) shall serve as the designated OSCs for areas in the coastal zone for which an ACP is required under CWA section 311(j) and EPA Regional Administrators shall designate OSCs for areas in the inland zone for which an ACP is required under CWA section 311(j).
(c) For releases of hazardous substances, pollutants, or contaminants, when the release is on, or the sole source of the release is from, any facility or vessel, including vessels bareboat-chartered and operated, under the jurisdiction, custody, or control of DOD, DOE, or other federal agency:
(1) In the case of DOD or DOE, DOD or DOE shall provide OSCs/RPMs responsible for taking all response actions; and
(2) In the case of a federal agency other than EPA, DOD, or DOE, such agency shall provide OSCs for all removal actions that are not emergencies and shall provide RPMs for all remedial actions.
(d) DOD will be the removal response authority with respect to incidents involving DOD military weapons and munitions or weapons and munitions under the jurisdiction, custody, or control of DOD.
(e) The OSC is responsible for overseeing development of the ACP in the area of the OSC's responsibility. ACPs shall, as appropriate, be accomplished in cooperation with the RRT, and designated state and local representatives. In contingency planning and removal, the OSC coordinates, directs, and reviews the work of other agencies, Area Committees, responsible parties, and contractors to assure compliance with the NCP, decision document, consent decree, administrative order, and lead agency-approved plans applicable to the response.
(f) The RPM is the prime contact for remedial or other response actions being taken (or needed) at sites on the proposed or promulgated NPL, and for sites not on the NPL but under the jurisdiction, custody, or control of a federal agency. The RPM's responsibilities include:
(1) Fund-financed response: The RPM coordinates, directs, and reviews the work of EPA, states and local governments, the U.S. Army Corps of Engineers, and all other agencies and contractors to assure compliance with the NCP. Based upon the reports of these parties, the RPM recommends action for decisions by lead agency officials. The RPM's period of responsibility begins prior to initiation of the remedial investigation/feasibility study (RI/FS), described in § 300.430, and continues through design, remedial action, deletion of the site from the NPL, and the CERCLA cost recovery activity. When a removal and remedial action occur at the same site, the OSC and RPM should coordinate to ensure an orderly transition of responsibility.
(2) Federal-lead non-Fund-financed response: The RPM coordinates, directs, and reviews the work of other agencies, responsible parties, and contractors to assure compliance with the NCP, Record of Decision (ROD), consent decree, administrative order, and lead agency-approved plans applicable to the response. Based upon the reports of these parties, the RPM shall recommend action for decisions by lead agency officials. The RPM's period of responsibility begins prior to initiation of the RI/FS, described in § 300.430, and continues through design and remedial action and the CERCLA cost recovery activity. The OSC and RPM shall ensure orderly transition of responsibilities from one to the other.
(3) The RPM shall participate in all decision-making processes necessary to ensure compliance with the NCP, including, as appropriate, agreements between EPA or other federal agencies and the state. The RPM may also review responses where EPA has preauthorized a person to file a claim for reimbursement to determine that the response was consistent with the terms of such preauthorization in cases where claims are filed for reimbursement.
(g)(1) Where a support agency has been identified through a cooperative agreement, Superfund Memorandum of Agreement (SMOA), or other agreement, that agency may designate a support agency coordinator (SAC) to provide assistance, as requested, by the OSC/RPM. The SAC is the prime representative of the support agency for response actions.
(2) The SAC's responsibilities may include:
(i) Providing and reviewing data and documents as requested by the OSC/RPM during the planning, design, and cleanup activities of the response action; and
(ii) Providing other assistance as requested.
(h)(1) The lead agency should provide appropriate training for its OSCs, RPMs, and other response personnel to carry out their responsibilities under the NCP.
(2) OSCs/RPMs should ensure that persons designated to act as their on-scene representatives are adequately trained and prepared to carry out actions under the NCP, to the extent practicable.
(a) The National Response Center (NRC), located at USCG Headquarters, is the national communications center, continuously manned for handling activities related to response actions. The NRC acts as the single point of contact for all pollution incident reporting, and as the NRT communications center. Notice of discharges and releases must be made telephonically through a toll free number or a special local number (Telecommunication Device for the Deaf (TDD) and collect calls accepted). (Notification details appear in §§ 300.300 and 300.405.) The NRC receives and immediately relays telephone notices of discharges or releases to the appropriate predesignated federal OSC. The telephone report is distributed to any interested NRT member agency or federal entity that has established a written agreement or understanding with the NRC. The NRC evaluates incoming information and immediately advises FEMA of a potential major disaster situation.
(b) The Commandant, USCG, in conjunction with other NRT agencies, shall provide the necessary personnel, communications, plotting facilities, and equipment for the NRC.
(c) Notice of an oil discharge or release of a hazardous substance in an amount equal to or greater than the reportable quantity must be made immediately in accordance with 33 CFR part 153, subpart B, and 40 CFR part 302, respectively. Notification shall be made to the NRC Duty Officer, HQ USCG, Washington, DC, telephone (800) 424-8802 or (202) 267-2675. All notices of discharges or releases received at the NRC will be relayed immediately by telephone to the OSC.
(a) In accordance with CWA and CERCLA, the Administrator of EPA or the Secretary of the department in which the USCG is operating, as appropriate, is authorized to act for the United States to take response measures deemed necessary to protect the public health or welfare or environment from discharges of oil or releases of hazardous substances, pollutants, or contaminants except with respect to such releases on or from vessels or facilities under the jurisdiction, custody, or control of other federal agencies.
(b) The Administrator of EPA or the Secretary of the department in which the USCG is operating, as appropriate, is authorized to initiate and, in the case of a discharge posing a substantial threat to public health or welfare of the United States is required to initiate and direct, appropriate response activities when the Administrator or Secretary determines that any oil or CWA hazardous substance is discharged
(c) The Administrator of EPA or the Secretary of the department in which the USCG is operating, as appropriate, is authorized to initiate appropriate response activities when the Administrator or Secretary determines that any hazardous substance is released or there is a threat of such a release into the environment, or there is a release or threat of release into the environment of any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare of the United States.
(d) In addition to any actions taken by a state or local government, the Administrator of EPA or the Secretary of the department in which the USCG is operating may request the U.S. Attorney General to secure the relief from any person, including the owner or operator of the vessel or facility necessary to abate a threat or, after notice to the affected state, take any other action authorized by section 311 of the CWA or section 106 of CERCLA as appropriate, including issuing administrative orders, that may be necessary to protect the public health or welfare, if the Administrator or Secretary determines:
(1) That there may be an imminent and substantial threat to the public health or welfare of the United States or the environment of the United States, including fish, shellfish, and wildlife, public and private property, shorelines, beaches, habitats, and other living and nonliving natural resources under the jurisdiction or control of the United States, because of an actual or threatened discharge of oil or a CWA hazardous substance from any vessel or offshore or onshore facility into or upon the navigable waters of the United States; or
(2) That there may be an imminent and substantial endangerment to the public health or welfare of the United States or the environment because of a release of a CERCLA hazardous substance from a facility.
(e) Response actions to remove discharges originating from operations conducted subject to the Outer Continental Shelf Lands Act shall be in accordance with the NCP.
(f) Where appropriate, when a discharge or release involves radioactive materials, the lead or support federal agency shall act consistent with the notification and assistance procedures described in the appropriate Federal Radiological Plan. For the purpose of the NCP, the FRERP (24 CFR part 2401) is the appropriate plan. Most radiological discharges and releases do not result in FRERP activation and should be handled in accordance with the NCP. However, releases from nuclear incidents subject to requirements for financial protection established by the Nuclear Regulatory Commission under the Price-Anderson amendments (section 170) of the Atomic Energy Act are specifically excluded from CERCLA and NCP requirements.
(g) Removal actions involving nuclear weapons should be conducted in accordance with the joint Department of Defense, Department of Energy, and FEMA Agreement for Response to Nuclear Incidents and Nuclear Weapons Significant Incidents (January 8, 1981).
(h) If the situation is beyond the capability of state and local governments and the statutory authority of federal agencies, the President may, under the Disaster Relief Act of 1974, act upon a request by the governor and declare a major disaster or emergency and appoint a Federal Coordinating Officer (FCO) to coordinate all federal disaster assistance activities. In such cases, the OSC/RPM would continue to carry out OSC/RPM responsibilities under the NCP, but would coordinate those activities with the FCO to ensure consistency with other federal disaster assistance activities.
(i) In the event of a declaration of a major disaster by the President, the FEMA may activate the Federal Response Plan (FRP). A FCO, designated by the President, may implement the FRP and coordinate and direct emergency assistance and disaster relief of
(a) The OSC/RPM, consistent with §§ 300.120 and 300.125, shall direct response efforts and coordinate all other efforts at the scene of a discharge or release. As part of the planning and preparation for response, the OSCs/RPMs shall be predesignated by the regional or district head of the lead agency.
(b) The first federal official affiliated with an NRT member agency to arrive at the scene of a discharge or release should coordinate activities under the NCP and is authorized to initiate, in consultation with the OSC, any necessary actions normally carried out by the OSC until the arrival of the predesignated OSC. This official may initiate federal fund-financed actions only as authorized by the OSC or, if the OSC is unavailable, the authorized representative of the lead agency.
(c) The OSC/RPM shall, to the extent practicable, collect pertinent facts about the discharge or release, such as its source and cause; the identification of potentially responsible parties; the nature, amount, and location of discharged or released materials; the probable direction and time of travel of discharged or released materials; whether the discharge is a worst case discharge as discussed in § 300.324; the pathways to human and environmental exposure; the potential impact on human health, welfare, and safety and the environment; whether the discharge or release poses a substantial threat to the public health or welfare of the United States as discussed in § 300.322; the potential impact on natural resources and property which may be affected; priorities for protecting human health and welfare and the environment; and appropriate cost documentation.
(d) The OSC's/RPM's efforts shall be coordinated with other appropriate federal, state, local, and private response agencies. OSCs/RPMs may designate capable persons from federal, state, or local agencies to act as their on-scene representatives. State and local governments, however, are not authorized to take actions under subparts D and E of the NCP that involve expenditures of the Oil Spill Liability Trust Fund or CERCLA funds unless an appropriate contract or cooperative agreement has been established. The basic framework for the response management structure is a system (e.g., a unified command system), that brings together the functions of the federal government, the state government, and the responsible party to achieve an effective and efficient response, where the OSC maintains authority.
(e) The OSC/RPM should consult regularly with the RRT and NSFCC, as appropriate, in carrying out the NCP and keep the RRT and NSFCC, as appropriate, informed of activities under the NCP.
(f) The OSC/RPM shall advise the support agency as promptly as possible of reported releases.
(g) The OSC/RPM should evaluate incoming information and immediately advise FEMA of potential major disaster situations.
(h) In those instances where a possible public health emergency exists, the OSC/RPM should notify the Department of Health and Human Services (HHS) representative to the RRT. Throughout response actions, the OSC/RPM may call upon the HHS representative for assistance in determining public health threats and call upon the Occupational Safety and Health Administration (OSHA) and HHS for assistance on worker health and safety issues.
(i) All federal agencies should plan for emergencies and develop procedures for dealing with oil discharges and releases of hazardous substances, pollutants, or contaminants from vessels and
(j)(1) The OSC/RPM shall ensure that the trustees for natural resources are promptly notified of discharges or releases.
(2) The OSC or RPM shall coordinate all response activities with the affected natural resource trustees and, for discharges of oil, the OSC shall consult with the affected trustees on the appropriate removal action to be taken.
(k) Where the OSC/RPM becomes aware that a discharge or release may affect any endangered or threatened species or their habitat, the OSC/RPM shall consult with the Department of Interior (DOI), or the Department of Commerce (DOC) (NOAA) and, if appropriate, the cognizant federal land managing agency.
(l) The OSC/RPM is responsible for addressing worker health and safety concerns at a response scene, in accordance with § 300.150.
(m) The OSC shall submit pollution reports to the RRT and other appropriate agencies as significant developments occur during response actions, through communications networks or procedures agreed to by the RRT and covered in the RCP.
(n) OSCs/RPMs should ensure that all appropriate public and private interests are kept informed and that their concerns are considered throughout a response, to the extent practicable, consistent with the requirements of § 300.155 of this part.
(a) If a discharge or release moves from the area covered by one ACP or RCP into another area, the authority for response actions should likewise shift. If a discharge or release affects areas covered by two or more ACPs or RCPs, the response mechanisms of each applicable plan may be activated. In this case, response actions of all regions concerned shall be fully coordinated as detailed in the RCPs and ACPs.
(b) There shall be only one OSC and/or RPM at any time during the course of a response operation. Should a discharge or release affect two or more areas, EPA, the USCG, DOD, DOE, or other lead agency, as appropriate, shall give prime consideration to the area vulnerable to the greatest threat, in determining which agency should provide the OSC and/or RPM. The RRT shall designate the OSC and/or RPM if the RRT member agencies who have response authority within the affected areas are unable to agree on the designation. The NRT shall designate the OSC and/or RPM if members of one RRT or two adjacent RRTs are unable to agree on the designation.
(c) Where the USCG has initially provided the OSC for response to a release from hazardous waste management facilities located in the coastal zone, responsibility for response action shall shift to EPA or another federal agency, as appropriate.
(a) The NSF is a special team established by the USCG, including the three USCG Strike Teams, the Public Information Assist Team (PIAT), and the NSFCC. The NSF is available to assist OSCs/RPMs in their preparedness and response duties.
(1) The three Strike Teams (Atlantic, Gulf, and Pacific) provide trained personnel and specialized equipment to assist the OSC in training for spill response, stabilizing and containing the spill, and in monitoring or directing the response actions of the responsible parties and/or contractors. The OSC has a specific team designated for initial contact and may contact that team directly for any assistance.
(2) The NSFCC can provide the following support to the OSC:
(i) Technical assistance, equipment and other resources to augment the OSC staff during spill response.
(ii) Assistance in coordinating the use of private and public resources in support of the OSC during a response to or a threat of a worst case discharge of oil.
(iii) Review of the area contingency plan, including an evaluation of equipment readiness and coordination among responsible public agencies and private organizations.
(iv) Assistance in locating spill response resources for both response and planning, using the NSFCC's national and international computerized inventory of spill response resources.
(v) Coordination and evaluation of pollution response exercises.
(vi) Inspection of district prepositioned pollution response equipment.
(3) PIAT is an element of the NSFCC staff which is available to assist OSCs to meet the demands for public information during a response or exercise. Its use is encouraged any time the OSC requires outside public affairs support. Requests for PIAT assistance may be made through the NSFCC or NRC.
(b)(1) The Environmental Response Team (ERT) is established by EPA in accordance with its disaster and emergency responsibilities. The ERT has expertise in treatment technology, biology, chemistry, hydrology, geology, and engineering.
(2) The ERT can provide access to special decontamination equipment for chemical releases and advice to the OSC/RPM in hazard evaluation; risk assessment; multimedia sampling and analysis program; on-site safety, including development and implementation plans; cleanup techniques and priorities; water supply decontamination and protection; application of dispersants; environmental assessment; degree of cleanup required; and disposal of contaminated material.
(3) The ERT also provides both introductory and intermediate level training courses to prepare response personnel.
(4) OSC/RPM or RRT requests for ERT support should be made to the EPA representative on the RRT; EPA Headquarters, Director, Emergency Response Division; or the appropriate EPA regional emergency coordinator.
(c) Scientific Support Coordinators (SSCs) may be designated by the OSC (and RPM in the case of EPA SSCs) as the principal advisors for scientific issues, communication with the scientific community, and coordination of requests for assistance from state and federal agencies regarding scientific studies. The SSC strives for a consensus on scientific issues affecting the response, but ensures that differing opinions within the community are communicated to the OSC/RPM.
(1) Generally, SSCs are provided by NOAA in the coastal zones, and by EPA in the inland zone. OSC/RPM requests for SSC support can be made directly to the SSC assigned to the area or to the agency member of the RRT. NOAA SSCs can also be requested through NOAA's SSC program office in Seattle, WA. NOAA SSCs are assigned to USCG Districts and are supported by a scientific support team that includes expertise in environmental chemistry, oil slick tracking, pollutant transport modeling, natural resources at risk, environmental tradeoffs of countermeasures and cleanup, and information management.
(2) During a response, the SSC serves on the federal OSC's/RPM's staff and may, at the request of the OSC/RPM, lead the scientific team and be responsible for providing scientific support for operational decisions and for coordinating on-scene scientific activity. Depending on the nature and location of the incident, the SSC integrates expertise from governmental agencies, universities, community representatives, and industry to assist the OSC/RPM in evaluating the hazards and potential effects of releases and in developing response strategies.
(3) At the request of the OSC, the SSC may facilitate the OSC's work with the lead administrative trustee for natural resources to ensure coordination between damage assessment data collection efforts and data collected in support of response operations.
(4) SSCs support the Regional Response Teams and the Area Committees in preparing regional and area contingency plans and in conducting spill training and exercises. For area plans, the SSC provides leadership for the synthesis and integration of environmental information required for spill response decisions in support of the OSC.
(d)(1) SUPSALV has an extensive salvage/search and recovery equipment inventory with the requisite knowledge and expertise to support these operations, including specialized salvage, firefighting, and petroleum, oil and lubricants offloading capability.
(2) When possible, SUPSALV will provide equipment for training exercises in support of national and regional contingency planning objectives.
(3) The OSC/RPM may request assistance directly from SUPSALV. Formal requests are routed through the Chief of Naval Operations (N312).
(e) For marine salvage operations, OSCs/RPMs with responsibility for monitoring, evaluating, or supervising these activities should request technical assistance from DOD, the Strike Teams, or commercial salvors as necessary to ensure that proper actions are taken. Marine salvage operations generally fall into five categories: afloat salvage; offshore salvage; river and harbor clearance; cargo salvage; and rescue towing. Each category requires different knowledge and specialized types of equipment. The complexity of such operations may be further compounded by local environmental and geographic conditions. The nature of marine salvage and the conditions under which it occurs combine to make such operations imprecise, difficult, hazardous, and expensive. Thus, responsible parties or other persons attempting to perform such operations without adequate knowledge, equipment, and experience could aggravate, rather than relieve, the situation.
(f) Radiological Emergency Response Teams (RERTs) have been established by EPA's Office of Radiation Programs (ORP) to provide response and support for incidents or sites containing radiological hazards. Expertise is available in radiation monitoring, radionuclide analysis, radiation health physics, and risk assessment. RERTs can provide on-site support including mobile monitoring laboratories for field analyses of samples and fixed laboratories for radiochemical sampling and analyses. Requests for support may be made 24 hours a day via the NRC or directly to the EPA Radiological Response Coordinator in the Office of Radiation Programs. Assistance is also available from DOE and other federal agencies.
(g)(1) DRGs assist the OSC by providing technical assistance, personnel, and equipment, including pre-positioned equipment. Each DRG consists of all Coast Guard personnel and equipment, including marine firefighting equipment, in its district, additional pre-positioned equipment, and a District Response Advisory Team (DRAT) that is available to provide support to the OSC in the event that a spill exceeds local response capabilities. Each DRG:
(i) Shall provide technical assistance, equipment, and other resources, as available, when requested by an OSC through the USCG representative to the RRT;
(ii) Shall ensure maintenance of all USCG response equipment within its district;
(iii) May provide technical assistance in the preparation of the ACP; and
(iv) Shall review each of those plans that affect its area of geographic responsibility.
(2) In deciding where to locate personnel and pre-positioned equipment, the USCG shall give priority emphasis to:
(i) The availability of facilities for loading and unloading heavy or bulky equipment by barge;
(ii) The proximity to an airport capable of supporting large military transport aircraft;
(iii) The flight time to provide response to oil spills in all areas of the Coast Guard district with the potential for marine casualties;
(iv) The availability of trained local personnel capable of responding in an oil spill emergency; and
(v) Areas where large quantities of petroleum products are transported.
(h) The NPFC is responsible for implementing those portions of Title I of the OPA that have been delegated to the Secretary of the department in which the Coast Guard is operating. The NPFC is responsible for addressing funding issues arising from discharges and threats of discharges of oil. The NPFC:
(1) Issues Certificates of Financial Responsibility to owners and operators of vessels to pay for costs and damages that are incurred by their vessels as a result of oil discharges;
(2) Provides funding for various response organizations for timely abatement and removal actions related to oil discharges;
(3) Provides equitable compensation to claimants who sustain costs and damages from oil discharges when the responsible party fails to do so;
(4) Recovers monies from persons liable for costs and damages resulting from oil discharges to the full extent of liability under the law; and
(5) Provides funds to initiate natural resource damage assessments.
(a) Response actions under the NCP will comply with the provisions for response action worker safety and health in 29 CFR 1910.120. The NRS meets the requirements of 29 CFR 1910.120 concerning use of an incident command system.
(b) In a response action taken by a responsible party, the responsible party must assure that an occupational safety and health program consistent with 29 CFR 1910.120 is made available for the protection of workers at the response site.
(c) In a response taken under the NCP by a lead agency, an occupational safety and health program should be made available for the protection of workers at the response site, consistent with, and to the extent required by, 29 CFR 1910.120. Contracts relating to a response action under the NCP should contain assurances that the contractor at the response site will comply with this program and with any applicable provisions of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) (OSH Act) and state laws with plans approved under section 18 of the OSH Act.
(d) When a state, or political subdivision of a state, without an OSHA-approved state plan is the lead agency for response, the state or political subdivision must comply with standards in 40 CFR part 311, promulgated by EPA pursuant to section 126(f) of SARA.
(e) Requirements, standards, and regulations of the OSH Act and of state OSH laws not directly referenced in paragraphs (a) through (d) of this section, must be complied with where applicable. Federal OSH Act requirements include, among other things, Construction Standards (29 CFR part 1926), General Industry Standards (29 CFR part 1910), and the general duty requirement of section 5(a)(1) of the OSH Act (29 U.S.C. 654(a)(1)). No action by the lead agency with respect to response activities under the NCP constitutes an exercise of statutory authority within the meaning of section 4(b)(1) of the OSH Act. All governmental agencies and private employers are directly responsible for the health and safety of their own employees.
(a) When an incident occurs, it is imperative to give the public prompt, accurate information on the nature of the incident and the actions underway to mitigate the damage. OSCs/RPMs and community relations personnel should ensure that all appropriate public and private interests are kept informed and that their concerns are considered throughout a response. They should coordinate with available public affairs/community relations resources to carry out this responsibility by establishing, as appropriate, a Joint Information Center bringing together resources from federal and state agencies and the responsible party.
(b) An on-scene news office may be established to coordinate media relations and to issue official federal information on an incident. Whenever possible, it will be headed by a representative of the lead agency. The OSC/RPM determines the location of the on-scene news office, but every effort should be made to locate it near the scene of the incident. If a participating agency believes public interest warrants the issuance of statements and an on-scene news office has not been established, the affected agency should recommend its establishment. All federal news releases or statements by participating agencies should be cleared through the OSC/RPM. Information dissemination relating to natural resource damage assessment activities shall be coordinated through the lead administrative trustee. The designated lead administrative trustee may assist the OSC/RPM by disseminating information on issues relating to damage assessment activities. Following termination of removal activity, information dissemination on damage assessment activities
(c) The community relations requirements specified in §§ 300.415, 300.430, and 300.435 apply to removal, remedial, and enforcement actions and are intended to promote active communication between communities affected by discharges or releases and the lead agency responsible for response actions. Community Relations Plans (CRPs) are required by EPA for certain response actions. The OSC/RPM should ensure coordination with such plans which may be in effect at the scene of a discharge or release or which may need to be developed during follow-up activities.
(a) For releases of a hazardous substance, pollutant, or contaminant, the following provisions apply:
(1) During all phases of response, the lead agency shall complete and maintain documentation to support all actions taken under the NCP and to form the basis for cost recovery. In general, documentation shall be sufficient to provide the source and circumstances of the release, the identity of responsible parties, the response action taken, accurate accounting of federal, state, or private party costs incurred for response actions, and impacts and potential impacts to the public health and welfare and the environment. Where applicable, documentation shall state when the NRC received notification of a release of a reportable quantity.
(2) The information and reports obtained by the lead agency for Fund-financed response actions shall, as appropriate, be transmitted to the chair of the RRT. Copies can then be forwarded to the NRT, members of the RRT, and others as appropriate.
(3) The lead agency shall make available to the trustees of affected natural resources information and documentation that can assist the trustees in the determination of actual or potential natural resource injuries.
(b) For discharges of oil, documentation and cost recovery provisions are described in § 300.315.
(c) Response actions undertaken by the participating agencies shall be carried out under existing programs and authorities when available. Federal agencies are to make resources available, expend funds, or participate in response to discharges and releases under their existing authority. Interagency agreements may be signed when necessary to ensure that the federal resources will be available for a timely response to a discharge or release. The ultimate decision as to the appropriateness of expending funds rests with the agency that is held accountable for such expenditures. Further funding provisions for discharges of oil are described in § 300.335.
(d) The Administrator of EPA and the Administrator of the Agency for Toxic Substances and Disease Registry (ATSDR) shall assure that the costs of health assessment or health effect studies conducted under the authority of CERCLA section 104(i) are documented in accordance with standard EPA procedures for cost recovery. Documentation shall include information on the nature of the hazardous substances addressed by the research, information concerning the locations where these substances have been found, and any available information on response actions taken concerning these substances at the location.
(a) As requested by the NRT or RRT, the OSC/RPM shall submit to the NRT or RRT a complete report on the removal operation and the actions taken. The RRT shall review the OSC report and send to the NRT a copy of the OSC report with its comments or recommendations within 30 days after the RRT has received the OSC report.
(b) The OSC report shall record the situation as it developed, the actions taken, the resources committed, and the problems encountered.
Federal agencies listed in § 300.175 have duties established by statute, executive order, or Presidential directive which may apply to federal response actions following, or in prevention of, the discharge of oil or release of a hazardous substance, pollutant, or contaminant. Some of these agencies also have duties relating to the restoration,
(a) Federal agencies may be called upon by an OSC/RPM during response planning and implementation to provide assistance in their respective areas of expertise, as described in § 300.175, consistent with the agencies' capabilities and authorities.
(b) In addition to their general responsibilities, federal agencies should:
(1) Make necessary information available to the Secretary of the NRT, RRTs, Area Committees, and OSCs/RPMs.
(2) Provide representatives to the NRT and RRTs and otherwise assist RRTs and OSCs, as necessary, in formulating RCPs and ACPs.
(3) Inform the NRT, RRTs, and Area Committees, consistent with national security considerations, of changes in the availability of resources that would affect the operations implemented under the NCP.
(c) All federal agencies are responsible for reporting releases of hazardous substances from facilities or vessels under their jurisdiction or control in accordance with section 103 of CERCLA.
(d) All federal agencies are encouraged to report releases of pollutants or contaminants and must report discharges of oil, as required in 40 CFR part 110, from facilities or vessels under their jurisdiction or control to the NRC.
(a) During preparedness planning or in an actual response, various federal agencies may be called upon to provide assistance in their respective areas of expertise, as indicated in paragraph (b) of this section, consistent with agency legal authorities and capabilities.
(b) The federal agencies include:
(1) USCG, as provided in 14 U.S.C. 1-3, is an agency in DOT, except when operating as an agency in the United States Navy (USN) in time of war. The USCG provides the NRT vice chair, co-chairs for the standing RRTs, and predesignated OSCs for the coastal zone, as described in § 300.120(a)(1). The USCG maintains continuously manned facilities which can be used for command, control, and surveillance of oil discharges and hazardous substance releases occurring in the coastal zone. The USCG also offers expertise in domestic and international fields of port safety and security, maritime law enforcement, ship navigation and construction, and the manning, operation, and safety of vessels and marine facilities. The USCG may enter into a contract or cooperative agreement with the appropriate state in order to implement a response action.
(2) EPA chairs the NRT and co-chairs, with the USCG, the standing RRTs; provides predesignated OSCs for all inland areas for which an ACP is required under CWA section 311(j) and for discharges and releases occurring in the inland zone and RPMs for remedial actions except as otherwise provided; and generally provides the SSC for responses in the inland zone. EPA provides expertise on human health and ecological effects of oil discharges or releases of hazardous substances, pollutants, or contaminants; ecological and human health risk assessment methods; and environmental pollution control techniques. Access to EPA's scientific expertise can be facilitated through the EPA representative to the Research and Development Committee of the National Response Team; the EPA Office of Research and Development's Superfund Technical Liaisons or Regional Scientists located in EPA Regional offices; or through EPA's Office of Science Planning and Regulatory Evaluation. EPA also provides legal expertise on the interpretation of CERCLA and other environmental statutes. EPA may enter into a contract or cooperative agreement with the appropriate state in order to implement a response action.
(3) FEMA provides guidance, policy and program advice, and technical assistance in hazardous materials, chemical, and radiological emergency preparedness activities (including planning, training, and exercising). FEMA's primary point of contact for administering financial and technical assistance to state and local governments to support their efforts to develop and maintain an effective emergency management and response capability is the Preparedness, Training, and Exercises Directorate.
(4) DOD has responsibility to take all action necessary with respect to releases where either the release is on, or the sole source of the release is from, any facility or vessel under the jurisdiction, custody, or control of DOD. In addition to those capabilities provided by SUPSALV, DOD may also, consistent with its operational requirements and upon request of the OSC, provide locally deployed USN oil spill equipment and provide assistance to other federal agencies on request. The following two branches of DOD have particularly relevant expertise:
(i) The United States Army Corps of Engineers has specialized equipment and personnel for maintaining navigation channels, for removing navigation obstructions, for accomplishing structural repairs, and for performing maintenance to hydropower electric generating equipment. The Corps can also provide design services, perform construction, and provide contract writing and contract administrative services for other federal agencies.
(ii) The U.S. Navy Supervisor of Salvage (SUPSALV) is the branch of service within DOD most knowledgeable and experienced in ship salvage, shipboard damage control, and diving. The USN has an extensive array of specialized equipment and personnel available for use in these areas as well as specialized containment, collection, and removal equipment specifically designed for salvage-related and open-sea pollution incidents.
(5) DOE generally provides designated OSCs/RPMs that are responsible for taking all response actions with respect to releases where either the release is on, or the sole source of the release is from, any facility or vessel under its jurisdiction, custody, or control, including vessels bareboat-chartered and operated. In addition, under the FRERP, DOE provides advice and assistance to other OSCs/RPMs for emergency actions essential for the control of immediate radiological hazards. Incidents that qualify for DOE radiological advice and assistance are those believed to involve source, by-product, or special nuclear material or other ionizing radiation sources, including radium, and other naturally occurring radionuclides, as well as particle accelerators. Assistance is available through direct contact with the appropriate DOE Radiological Assistance Program Regional Office.
(6) The Department of Agriculture (USDA) has scientific and technical capability to measure, evaluate, and monitor, either on the ground or by use of aircraft, situations where natural resources including soil, water, wildlife, and vegetation have been impacted by fire, insects and diseases, floods, hazardous substances, and other natural or man-caused emergencies. The USDA may be contacted through Forest Service emergency staff officers who are the designated members of the RRT. Agencies within USDA have relevant capabilities and expertise as follows:
(i) The Forest Service has responsibility for protection and management of national forests and national grasslands. The Forest Service has personnel, laboratory, and field capability to measure, evaluate, monitor, and control as needed, releases of pesticides and other hazardous substances on lands under its jurisdiction.
(ii) The Agriculture Research Service (ARS) administers an applied and developmental research program in animal and plant protection and production; the use and improvement of soil, water, and air; the processing, storage, and distribution of farm products; and human nutrition. The ARS has the capabilities to provide regulation of, and evaluation and training for, employees exposed to biological, chemical, radiological, and industrial hazards. In emergency situations, the ARS can identify, control, and abate pollution in the areas of air, soil, wastes, pesticides, radiation, and toxic substances for ARS facilities.
(iii) The Soil Conservation Service (SCS) has personnel in nearly every county in the nation who are knowledgeable in soil, agronomy, engineering, and biology. These personnel can help to predict the effects of pollutants on soil and their movements over and through soils. Technical specialists can assist in identifying potential hazardous waste sites and provide review and advice on plans for remedial measures.
(iv) The Animal and Plant Health Inspection Service (APHIS) can respond in an emergency to regulate movement of diseased or infected organisms to prevent the spread and contamination of nonaffected areas.
(v) The Food Safety and Inspection Service (FSIS) has responsibility to prevent meat and poultry products contaminated with harmful substances from entering human food channels. In emergencies, the FSIS works with other federal and state agencies to establish acceptability for slaughter of exposed or potentially exposed animals and their products. In addition they are charged with managing the Federal Radiological Emergency Response Program for the USDA.
(7) DOC, through NOAA, provides scientific support for response and contingency planning in coastal and marine areas, including assessments of the hazards that may be involved, predictions of movement and dispersion of oil and hazardous substances through trajectory modeling, and information on the sensitivity of coastal environments to oil and hazardous substances and associated clean-up and mitigation methods; provides expertise on living marine resources and their habitats, including endangered species, marine mammals and National Marine Sanctuary ecosystems; provides information on actual and predicted meteorological, hydrological, ice, and oceanographic conditions for marine, coastal, and inland waters, and tide and circulation data for coastal and territorial waters and for the Great Lakes.
(8) HHS assists with the assessment, preservation, and protection of human health and helps ensure the availability of essential human services. HHS provides technical and nontechnical assistance in the form of advice, guidance, and resources to other federal agencies as well as state and local governments.
(i) The principal HHS response comes from the U.S. Public Health Service and is coordinated from the Office of the Assistant Secretary for Health, and various Public Health Service regional offices. Within the Public Health Service, the primary response to a hazardous materials emergency comes from Agency for Toxic Substances and Disease Registry (ATSDR) and the Centers for Disease Control (CDC). Both ATSDR and CDC have a 24-hour emergency response capability wherein scientific and technical personnel are available to provide technical assistance to the lead federal agency and state and local response agencies on human health threat assessment and analysis, and exposure prevention and mitigation. Such assistance is used for situations requiring evacuation of affected areas, human exposure to hazardous materials, and technical advice on mitigation and prevention. CDC takes the lead during petroleum releases regulated under the CWA and OPA while ATSDR takes the lead during chemical releases under CERCLA. Both agencies are mutually supportive.
(ii) Other Public Health Service agencies involved in support during hazardous materials incidents either directly or through ATSDR/CDC include the Food and Drug Administration, the Health Resources and Services Administration, the Indian Health Service, and the National Institutes of Health.
(iii) Statutory authority for HHS/National Institutes for Environmental Health Sciences (NIEHS) involvement in hazardous materials accident prevention is non-regulatory in nature and focused on two primary areas for preventing community and worker exposure to hazardous materials releases: Worker safety training and basic research activities. Under section 126 of SARA, NIEHS is given statutory authority for supporting development of curricula and model training programs for waste workers and chemical emergency responders.
Under section 118(b) of the Hazardous Materials Transportation and Uniform Safety Act (HMTUSA) (49 U.S.C. 1802
(9) DOI may be contacted through Regional Environmental Officers (REOs), who are the designated members of RRTs. Department land managers have jurisdiction over the national park system, national wildlife refuges and fish hatcheries, the public lands, and certain water projects in western states. In addition, bureaus and offices have relevant expertise as follows:
(i) United States Fish and Wildlife Service (USFWS) and other Bureaus: Anadromous and certain other fishes and wildlife, including endangered and threatened species, migratory birds, and certain marine mammals; waters and wetlands; and effects on natural resources.
(ii) The National Biological Survey performs research in support of biological resource management; inventories, monitors, and reports on the status and trends in the Nation's biotic resources; and transfers the information gained in research and monitoring to resource managers and others concerned with the care, use, and conservation of the Nation's natural resources. The National Biological Survey has laboratory/research facilities.
(iii) Geological Survey: Geology, hydrology (ground water and surface water), and natural hazards.
(iv) Bureau of Land Management: Minerals, soils, vegetation, wildlife, habitat, archaeology, and wilderness; and hazardous materials.
(v) Minerals Management Service: Oversight of offshore oil and gas exploration and production facilities and associated pipelines and pipeline facilities under the Outer Continental Shelf Lands Act and the CWA; oil spill response technology research; and establishing oil discharge contingency planning requirements for offshore facilities.
(vi) Bureau of Mines: Analysis and identification of inorganic hazardous substances and technical expertise in metals and metallurgy relevant to site cleanup.
(vii) Office of Surface Mining: Coal mine wastes and land reclamation.
(viii) National Park Service: General biological, natural, and cultural resource managers to evaluate, measure, monitor, and contain threats to park system lands and resources; archaeological and historical expertise in protection, preservation, evaluation, impact mitigation, and restoration of cultural resources; emergency personnel.
(ix) Bureau of Reclamation: Operation and maintenance of water projects in the West; engineering and hydrology; and reservoirs.
(x) Bureau of Indian Affairs: Coordination of activities affecting Indian lands; assistance in identifying Indian tribal government officials.
(xi) Office of Territorial Affairs: Assistance in implementing the NCP in American Samoa, Guam, the Pacific Island Governments, the Northern Mariana Islands, and the Virgin Islands.
(10) The Department of Justice (DOJ) can provide expert advice on complicated legal questions arising from discharges or releases, and federal agency responses. In addition, the DOJ represents the federal government, including its agencies, in litigation relating to such discharges or releases. Other legal issues or questions shall be directed to the federal agency counsel for the agency providing the OSC/RPM for the response.
(11) The Department of Labor (DOL), through OSHA and the states operating plans approved under section 18 of the OSH Act, has authority to conduct
(i) Safety and health standards and regulations promulgated by OSHA (or the states) in accordance with section 126 of SARA and all other applicable standards; and
(ii) Regulations promulgated under the OSH Act and its general duty clause. OSHA inspections may be self-generated, consistent with its program operations and objectives, or may be conducted in response to requests from EPA or another lead agency, or in response to accidents or employee complaints. OSHA may also conduct inspections at hazardous waste sites in those states with approved plans that choose not to exercise their jurisdiction to inspect such sites. On request, OSHA will provide advice and consultation to EPA and other NRT/RRT agencies as well as to the OSC/RPM regarding hazards to persons engaged in response activities. OSHA may also take any other action necessary to assure that employees are properly protected at such response activities. Any questions about occupational safety and health at these sites may be referred to the OSHA Regional Office.
(12) DOT provides response expertise pertaining to transportation of oil or hazardous substances by all modes of transportation. Through the Research and Special Programs Administration (RSPA), DOT offers expertise in the requirements for packaging, handling, and transporting regulated hazardous materials. DOT, through RSPA, establishes oil discharge contingency planning requirements for pipelines, transport by rail and containers or bulk transport of oil.
(13) The Department of State (DOS) will lead in the development of international joint contingency plans. It will also help to coordinate an international response when discharges or releases cross international boundaries or involve foreign flag vessels. Additionally, DOS will coordinate requests for assistance from foreign governments and U.S. proposals for conducting research at incidents that occur in waters of other countries.
(14) The Nuclear Regulatory Commission will respond, as appropriate, to releases of radioactive materials by its licensees, in accordance with the NRC Incident Response Plan (NUREG-0728) to monitor the actions of those licensees and assure that the public health and environment are protected and adequate recovery operations are instituted. The Nuclear Regulatory Commission will keep EPA informed of any significant actual or potential releases in accordance with procedural agreements. In addition, the Nuclear Regulatory Commission will provide advice to the OSC/RPM when assistance is required in identifying the source and character of other hazardous substance releases where the Nuclear Regulatory Commission has licensing authority for activities utilizing radioactive materials.
(15) The General Services Administration (GSA) provides logistic and telecommunications support to federal agencies. During an emergency situation, GSA quickly responds to aid state and local governments as directed by other federal agencies. The type of support provided might include leasing and furnishing office space, setting up telecommunications and transportation services, and advisory assistance.
(a) Each state governor is requested to designate one state office/representative to represent the state on the appropriate RRT. The state's office/representative may participate fully in all activities of the appropriate RRT. Each state governor is also requested to designate a lead state agency that will direct state-lead response operations. This agency is responsible for designating the lead state response official for federal and/or state-lead response actions, and coordinating/communicating with any other state agencies, as appropriate. Local governments are invited to participate in activities on the appropriate RRT as may be provided by state law or arranged by the state's representative. Indian tribes wishing to participate should assign one person or office to represent the
(b) Appropriate local and state officials (including Indian tribes) will participate as part of the response structure as provided in the ACP.
(c) In addition to meeting the requirements for local emergency plans under SARA section 303, state and local government agencies are encouraged to include contingency planning for responses, consistent with the NCP, RCP, and ACP in all emergency and disaster planning.
(d) For facilities not addressed under CERCLA or the CWA, states are encouraged to undertake response actions themselves or to use their authorities to compel potentially responsible parties to undertake response actions.
(e) States are encouraged to enter into cooperative agreements pursuant to sections 104 (c)(3) and (d) of CERCLA to enable them to undertake actions authorized under subpart E of the NCP. Requirements for entering into these agreements are included in subpart F of the NCP. A state agency that acts pursuant to such agreements is referred to as the lead agency. In the event there is no cooperative agreement, the lead agency can be designated in a SMOA or other agreement.
(f) Because state and local public safety organizations would normally be the first government representatives at the scene of a discharge or release, they are expected to initiate public safety measures that are necessary to protect public health and welfare and that are consistent with containment and cleanup requirements in the NCP, and are responsible for directing evacuations pursuant to existing state or local procedures.
(a) Industry groups, academic organizations, and others are encouraged to commit resources for response operations. Specific commitments should be listed in the RCP and ACP. Those entities required to develop tank vessel and facility response plans under CWA section 311(j) must be able to respond to a worst case discharge to the maximum extent practicable, and shall commit sufficient resources to implement other aspects of those plans in accordance with the requirements of 30 CFR part 254, 33 CFR parts 150, 154, and 155; 40 CFR part 112; and 49 CFR parts 171 and 194.
(b) The technical and scientific information generated by the local community, along with information from federal, state, and local governments, should be used to assist the OSC/RPM in devising response strategies where effective standard techniques are unavailable. Such information and strategies will be incorporated into the ACP, as appropriate. The SSC may act as liaison between the OSC/RPM and such interested organizations.
(c) ACPs shall establish procedures to allow for well organized, worthwhile, and safe use of volunteers, including compliance with § 300.150 regarding worker health and safety. ACPs should provide for the direction of volunteers by the OSC/RPM or by other federal, state, or local officials knowledgeable in contingency operations and capable of providing leadership. ACPs also should identify specific areas in which volunteers can be used, such as beach surveillance, logistical support, and bird and wildlife treatment. Unless specifically requested by the OSC/RPM, volunteers generally should not be used for physical removal or remedial activities. If, in the judgment of the OSC/RPM, dangerous conditions exist, volunteers shall be restricted from on-scene operations.
(d) Nongovernmental participation must be in compliance with the requirements of subpart H of this part if any recovery of costs will be sought.
This subpart summarizes emergency preparedness activities relating to discharges of oil and releases of hazardous substances, pollutants, or contaminants; describes the three levels of contingency planning under the national response system; and cross-references state and local emergency preparedness activities under SARA Title III,
(a)
(b)
(c)
(1) Preparing an ACP for their areas (as described in § 300.210(c));
(2) Working with appropriate federal, state, and local officials to enhance the contingency planning of those officials and to assure pre-planning of joint response efforts, including appropriate procedures for mechanical recovery, dispersal, shoreline cleanup, protection of sensitive environmental areas, and protection, rescue, and rehabilitation of fisheries and wildlife; and
(3) Working with appropriate federal, state, and local officials to expedite decisions for the use of dispersants and other mitigating substances and devices.
(d)
(e)
(f) As required by section 311(j)(5) of the CWA, a tank vessel, as defined under section 2101 of title 46, U.S. Code, an offshore facility, and an onshore facility that, because of its location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or exclusive economic zone must prepare and submit a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of oil or a hazardous substance.
(g) The relationship of these plans is described in Figure 4.
There are three levels of contingency plans under the national response system: The National Contingency Plan, RCPs, and ACPs. These plans are available for inspection at EPA regional offices or USCG district offices. Addresses and telephone numbers for these offices may be found in the United States Government Manual, issued annually, or in local telephone directories.
(a)
(b)
(c)
(2) The areas of responsibility may include several Title III local planning districts, or parts of such districts. In developing the ACP, the OSC shall coordinate with affected SERCs and LEPCs. The ACP shall provide for a well coordinated response that is integrated and compatible, to the greatest extent possible, with all appropriate response plans of state, local, and non-federal entities, and especially with Title III local emergency response plans.
(3) The ACP shall include the following:
(i) A description of the area covered by the plan, including the areas of special economic or environmental importance that might be damaged by a discharge;
(ii) A description in detail of the responsibilities of an owner or operator and of federal, state, and local agencies in removing a discharge, and in mitigating or preventing a substantial threat of a discharge;
(iii) A list of equipment (including firefighting equipment), dispersants, or other mitigating substances and devices, and personnel available to an owner or operator and federal, state, and local agencies, to ensure an effective and immediate removal of a discharge, and to ensure mitigation or prevention of a substantial threat of a discharge (this may be provided in an appendix or by reference to other relevant emergency plans (e.g., state or LEPC plans), which may include such equipment lists);
(iv) A description of procedures to be followed for obtaining an expedited decision regarding the use of dispersants; and
(v) A detailed description of how the plan is integrated into other ACPs and tank vessel, offshore facility, and onshore facility response plans approved by the President, and into operating procedures of the NSFCC.
(4)(i) In order to provide for coordinated, immediate and effective protection, rescue, and rehabilitation of, and minimization of risk of injury to, fish and wildlife resources and habitat, Area Committees shall incorporate into each ACP a detailed annex containing a Fish and Wildlife and Sensitive Environments Plan that is consistent with the RCP and NCP. The annex shall be prepared in consultation with the USFWS and NOAA and other interested natural resource management agencies and parties. It shall address fish and wildlife resources and their habitat, and shall include other areas considered sensitive environments in a separate section of the annex, based upon Area Committee recommendations. The annex will provide the necessary information and procedures to immediately and effectively respond to discharges that may adversely affect fish and wildlife and their habitat and sensitive environments, including provisions for a response to a worst case discharge. Such information shall include the identification of appropriate agencies and
(ii) The annex shall:
(A) Identify and establish priorities for fish and wildlife resources and their habitats and other important sensitive areas requiring protection from any direct or indirect effects from discharges that may occur. These effects include, but are not limited to, any seasonal or historical use, as well as all critical, special, significant, or otherwise designated protected areas.
(B) Provide a mechanism to be used during a spill response for timely identification of protection priorities of those fish and wildlife resources and habitats and sensitive environmental areas that may be threatened or injured by a discharge. These include as appropriate, not only marine and freshwater species, habitats, and their food sources, but also terrestrial wildlife and their habitats that may be affected directly by onshore oil or indirectly by oil-related factors, such as loss or contamination of forage. The mechanism shall also provide for expeditious evaluation and appropriate consultations on the effects to fish and wildlife, their habitat, and other sensitive environments from the application of chemical countermeasures or other countermeasures not addressed under paragraph (e)(4)(iii).
(C) Identify potential environmental effects on fish and wildlife, their habitat, and other sensitive environments resulting from removal actions or countermeasures, including the option of no removal. Based on this evaluation of potential environmental effects, the annex should establish priorities for application of countermeasure and removal actions to habitats within the geographic region of the ACP. The annex should establish methods to minimize the identified effects on fish and wildlife because of response activities, including, but not limited to: Disturbance of sensitive areas and habitats; illegal or inadvertent taking or disturbance of fish and wildlife or specimens by response personnel; and fish and wildlife, their habitat, and environmentally sensitive areas coming in contact with various cleaning or bioremediation agents. Furthermore, the annex should identify the areas where the movement of oiled debris may pose a risk to resident, transient, or migratory fish and wildlife, and other sensitive environments and should discuss measures to be considered for removing such oiled debris in a timely fashion to reduce such risk.
(D) Provide for pre-approval of application of specific countermeasures or removal actions that, if expeditiously applied, will minimize adverse spill-induced impacts to fish and wildlife resources, their habitat, and other sensitive environments. Such pre-approval plans must be consistent with paragraphs (c)(4)(ii)(B) and (C) of this section and subpart J requirements, and must have the concurrence of the natural resource trustees.
(E) Provide monitoring plan(s) to evaluate the effectiveness of different countermeasures or removal actions in protecting the environment. Monitoring should include “set-aside” or “control” areas, where no mitigative actions are taken.
(F) Identify and plan for the acquisition and utilization of necessary response capabilities for protection, rescue, and rehabilitation of fish and wildlife resources and habitat. This may include appropriately permitted private organizations and individuals with appropriate expertise and experience. The suitable organizations should be identified in cooperation with natural resource law enforcement agencies. Such capabilities shall include, but not be limited to, identification of facilities and equipment necessary for deterring sensitive fish and wildlife from entering oiled areas, and for capturing, holding, cleaning, and releasing injured wildlife. Plans for the provision of such capabilities shall ensure that there is no interference with other OSC removal operations.
(G) Identify appropriate federal and state agency contacts and alternates responsible for coordination of fish and wildlife rescue and rehabilitation and protection of sensitive environments; identify and provide for required fish
(H) Identify and secure the means for providing, if needed, the minimum required OSHA and EPA training for volunteers, including those who assist with injured wildlife.
(I) Define the requirements for evaluating the compatibility between this annex and non-federal response plans (including those of vessels, facilities, and pipelines) on issues affecting fish and wildlife, their habitat, and sensitive environments.
This section describes and cross-references the regulations that implement section 311(j)(5) of the CWA. A tank vessel, as defined under section 2101 of title 46, U.S. Code, an offshore facility, and an onshore facility that, because of its location, could reasonably expect to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or exclusive economic zone must prepare and submit a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of oil or a hazardous substance. These response plans are required to be consistent with applicable Area Contingency Plans. These regulations are codified as follows:
(a) For tank vessels, these regulations are codified in 33 CFR part 155;
(b) For offshore facilities, these regulations are codified in 30 CFR part 254;
(c) For non-transportation related onshore facilities, these regulations are codified in 40 CFR 112.20;
(d) For transportation-related onshore facilities, these regulations are codified in 33 CFR part 154;
(e) For pipeline facilities, these regulations are codified in 49 CFR part 194; and
(f) For rolling stock, these regulations are codified in 49 CFR part 106 et al.
The OSC periodically shall conduct drills of removal capability (including fish and wildlife response capability), without prior notice, in areas for which ACPs are required by § 300.210(c) and under relevant tank vessel and facility response plans.
This section describes and cross-references the regulations that implement Title III. These regulations are codified at 40 CFR part 355.
(a) Each LEPC is to prepare an emergency response plan in accordance with section 303 of Title III and review the plan once a year, or more frequently as changed circumstances in the community or at any facility may require. Such Title III local emergency response plans should be closely coordinated with applicable federal ACPs and state emergency response plans.
(b) [Reserved]
Other related Title III requirements are found in 40 CFR part 355.
(a) A discharge of oil may be discovered through:
(1) A report submitted by the person in charge of a vessel or facility, in accordance with statutory requirements;
(2) Deliberate search by patrols;
(3) Random or incidental observation by government agencies or the public; or
(4) Other sources.
(b) Any person in charge of a vessel or a facility shall, as soon as he or she has knowledge of any discharge from
(c) Any other person shall, as appropriate, notify the NRC of a discharge of oil.
(d) Upon receipt of a notification of discharge, the NRC shall promptly notify the OSC. The OSC shall ensure notification of the appropriate state agency of any state which is, or may reasonably be expected to be, affected by the discharge. The OSC shall then proceed with the following phases as outlined in the RCP and ACP.
(a) The OSC is responsible for promptly initiating a preliminary assessment.
(b) The preliminary assessment shall be conducted using available information, supplemented where necessary and possible by an on-scene inspection. The OSC shall undertake actions to:
(1) Evaluate the magnitude and severity of the discharge or threat to public health or welfare of the United States or the environment;
(2) Assess the feasibility of removal; and
(3) To the extent practicable, identify potentially responsible parties.
(c) Where practicable, the framework for the response management structure is a system (e.g., a unified command system), that brings together the functions of the federal government, the state government, and the responsible party to achieve an effective and efficient response, where the OSC maintains authority.
(d) Except in a case when the OSC is required to direct the response to a discharge that may pose a substantial threat to the public health or welfare of the United States (including but not limited to fish, shellfish, wildlife, other natural resources, and the public and private beaches and shorelines of the United States), the OSC may allow the responsible party to voluntarily and promptly perform removal actions, provided the OSC determines such actions will ensure an effective and immediate removal of the discharge or mitigation or prevention of a substantial threat of a discharge. If the responsible party does conduct the removal, the OSC shall ensure adequate surveillance over whatever actions are initiated. If effective actions are not being taken to eliminate the threat, or if removal is not being properly done, the OSC should, to the extent practicable under the circumstances, so advise the responsible party. If the responsible party does not respond properly the OSC shall take appropriate response actions and should notify the responsible party of the potential liability for federal response costs incurred by the OSC pursuant to the OPA and CWA. Where practicable, continuing efforts should be made to encourage response by responsible parties.
(1) In carrying out a response under this section, the OSC may:
(i) Remove or arrange for the removal of a discharge, and mitigate or prevent a substantial threat of a discharge, at any time;
(ii) Direct or monitor all federal, state, and private actions to remove a discharge; and
(iii) Remove and, if necessary, destroy a vessel discharging, or threatening to discharge, by whatever means are available.
(2) If the discharge results in a substantial threat to the public health or welfare of the United States (including, but not limited to fish, shellfish, wildlife, other natural resources, and the public and private beaches and shorelines of the United States), the OSC must direct all response efforts, as provided in § 300.322(b) of this part. The OSC should declare as expeditiously as practicable to spill response participants that the federal government will
(e) The OSC shall ensure that the natural resource trustees are promptly notified in the event of any discharge of oil, to the maximum extent practicable as provided in the Fish and Wildlife and Sensitive Environments Plan annex to the ACP for the area in which the discharge occurs. The OSC and the trustees shall coordinate assessments, evaluations, investigations, and planning with respect to appropriate removal actions. The OSC shall consult with the affected trustees on the appropriate removal action to be taken. The trustees will provide timely advice concerning recommended actions with regard to trustee resources potentially affected. The trustees also will assure that the OSC is informed of their activities in natural resource damage assessment that may affect response operations. The trustees shall assure, through the lead administrative trustee, that all data from the natural resource damage assessment activities that may support more effective operational decisions are provided in a timely manner to the OSC. When circumstances permit, the OSC shall share the use of non-monetary response resources (
(a) Defensive actions shall begin as soon as possible to prevent, minimize, or mitigate threat(s) to the public health or welfare of the United States or the environment. Actions may include but are not limited to: Analyzing water samples to determine the source and spread of the oil; controlling the source of discharge; measuring and sampling; source and spread control or salvage operations; placement of physical barriers to deter the spread of the oil and to protect natural resources and sensitive ecosystems; control of the water discharged from upstream impoundment; and the use of chemicals and other materials in accordance with subpart J of this part to restrain the spread of the oil and mitigate its effects. The ACP prepared under § 300.210(c) should be consulted for procedures to be followed for obtaining an expedited decision regarding the use of dispersants and other products listed on the NCP Product Schedule.
(b) As appropriate, actions shall be taken to recover the oil or mitigate its effects. Of the numerous chemical or physical methods that may be used, the chosen methods shall be the most consistent with protecting public health and welfare and the environment. Sinking agents shall not be used.
(c) Oil and contaminated materials recovered in cleanup operations shall be disposed of in accordance with the RCP, ACP, and any applicable laws, regulations, or requirements. RRT and Area Committee guidelines may identify the disposal options available during an oil spill response and may describe what disposal requirements are mandatory or may not be waived by the OSC. ACP guidelines should address: the sampling, testing, and classifying of recovered oil and oiled debris; the segregation, temporary storage, and stockpiling of recovered oil and oiled debris; prior state disposal approvals and permits; and the routes; methods (e.g. recycle/reuse, on-site burning, incineration, landfilling, etc.); and sites for the disposal of collected oil, oiled debris, and animal carcasses; and procedures for obtaining waivers, exemptions, or authorizations associated with handling or transporting waste materials. The ACPs may identify a hierarchy of preferences for disposal alternatives, with recycling (reprocessing) being the most preferred, and other alternatives preferred based
(a) All OSLTF users need to collect and maintain documentation to support all actions taken under the CWA. In general, documentation shall be sufficient to support full cost recovery for resources utilized and shall identify the source and circumstances of the incident, the responsible party or parties, and impacts and potential impacts to public health and welfare and the environment. Documentation procedures are contained in 33 CFR part 136.
(b) When appropriate, documentation shall also be collected for scientific understanding of the environment and for research and development of improved response methods and technology. Funding for these actions is restricted by section 6002 of the OPA.
(c) OSCs shall submit OSC reports to the NRT or RRT, only if requested, as provided by § 300.165.
(d) OSCs shall ensure the necessary collection and safeguarding of information, samples, and reports. Samples and information shall be gathered expeditiously during the response to ensure an accurate record of the impacts incurred. Documentation materials shall be made available to the trustees of affected natural resources. The OSC shall make available to trustees of the affected natural resources information and documentation in the OSC's possession that can assist the trustees in the determination of actual or potential natural resource injuries.
(e) Information and reports obtained by the EPA or USCG OSC shall be transmitted to the appropriate offices responsible for follow-up actions.
(a) Safety of human life must be given the top priority during every response action. This includes any search and rescue efforts in the general proximity of the discharge and the insurance of safety of response personnel.
(b) Stabilizing the situation to preclude the event from worsening is the next priority. All efforts must be focused on saving a vessel that has been involved in a grounding, collision, fire, or explosion, so that it does not compound the problem. Comparable measures should be taken to stabilize a situation involving a facility, pipeline, or other source of pollution. Stabilizing the situation includes securing the source of the spill and/or removing the remaining oil from the container (vessel, tank, or pipeline) to prevent additional oil spillage, to reduce the need for follow-up response action, and to minimize adverse impact to the environment.
(c) The response must use all necessary containment and removal tactics in a coordinated manner to ensure a timely, effective response that minimizes adverse impact to the environment.
(d) All parts of this national response strategy should be addressed concurrently, but safety and stabilization are the highest priorities. The OSC should not delay containment and removal decisions unnecessarily and should take actions to minimize adverse impact to the environment that begins as soon as a discharge occurs, as well as actions to minimize further adverse environmental impact from additional discharges.
(e) The priorities set forth in this section are broad in nature, and should not be interpreted to preclude the consideration of other priorities that may arise on a site-specific basis.
(a) When the OSC receives a report of a discharge, actions normally should be taken in the following sequence:
(1) Investigate the report to determine pertinent information such as the threat posed to public health or welfare of the United States or the environment, the type and quantity of polluting material, and the source of the discharge.
(2) Officially classify the size (
(i) When the reported discharge is an actual or potential major discharge, the OSC shall immediately notify the RRT and the NRC.
(ii) When the investigation shows that an actual or potential medium discharge exists, the OSC shall recommend activation of the RRT, if appropriate.
(iii) When the investigation shows that an actual or potential minor discharge exists, the OSC shall monitor the situation to ensure that proper removal action is being taken.
(3) If the OSC determines that effective and immediate removal, mitigation, or prevention of a discharge can be achieved by private party efforts, and where the discharge does not pose a substantial threat to the public health or welfare of the United States, determine whether the responsible party or other person is properly carrying out removal. Removal is being done properly when:
(i) The responsible party is applying the resources called for in its response plan to effectively and immediately remove, minimize, or mitigate threat(s) to public health and welfare and the environment; and
(ii) The removal efforts are in accordance with applicable regulations, including the NCP. Even if the OSC supplements responsible party resources with government resources, the spill response will not be considered improper, unless specifically determined by the OSC.
(4) Where appropriate, determine whether a state or political subdivision thereof has the capability to carry out any or all removal actions. If so, the OSC may arrange funding to support these actions.
(5) Ensure prompt notification of the trustees of affected natural resources in accordance with the applicable RCP and ACP.
(b) Removal shall be considered complete when so determined by the OSC in consultation with the Governor or Governors of the affected states. When the OSC considers removal complete, OSLTF removal funding shall end. This determination shall not preclude additional removal actions under applicable state law.
(a) As part of the investigation described in § 300.320, the OSC shall determine whether a discharge results in a substantial threat to public health or welfare of the United States (including, but not limited to, fish, shellfish, wildlife, other natural resources, and the public and private beaches and shorelines of the United States). Factors to be considered by the OSC in making this determination include, but are not limited to, the size of the discharge, the character of the discharge, and the nature of the threat to public health or welfare of the United States. Upon obtaining such information, the OSC shall conduct an evaluation of the threat posed, based on the OSC's experience in assessing other discharges, and consultation with senior lead agency officials and readily available authorities on issues outside the OSC's technical expertise.
(b) If the investigation by the OSC shows that the discharge poses or may present a substantial threat to public health or welfare of the United States, the OSC shall direct all federal, state, or private actions to remove the discharge or to mitigate or prevent the threat of such a discharge, as appropriate. In directing the response in such cases, the OSC may act without regard to any other provision of law governing contracting procedures or employment of personnel by the federal government to:
(1) Remove or arrange for the removal of the discharge;
(2) Mitigate or prevent the substantial threat of the discharge; and
(3) Remove and, if necessary, destroy a vessel discharging, or threatening to discharge, by whatever means are available.
(c) In the case of a substantial threat to public health or welfare of the United States, the OSC shall:
(1) Assess opportunities for the use of various special teams and other assistance described in § 300.145, including the use of the services of the NSFCC, as appropriate;
(2) Request immediate activation of the RRT; and
(3) Take whatever additional response actions are deemed appropriate, including, but not limited to, implementation of the ACP as required by section 311(j)(4) of the CWA or relevant tank vessel or facility response plan required by section 311(j)(5) of the CWA. When requested by the OSC, the lead agency or RRT shall dispatch appropriate personnel to the scene of the discharge to assist the OSC. This assistance may include technical support in the agency's areas of expertise and disseminating information to the public. The lead agency shall ensure that a contracting officer is available on scene, at the request of the OSC.
(a) A discharge may be classified as a spill of national significance (SONS) by the Administrator of EPA for discharges occurring in the inland zone and the Commandant of the USCG for discharges occurring in the coastal zone.
(b) For a SONS in the inland zone, the EPA Administrator may name a senior Agency official to assist the OSC in communicating with affected parties and the public and coordinating federal, state, local, and international resources at the national level. This strategic coordination will involve, as appropriate, the NRT, RRT(s), the Governor(s) of affected state(s), and the mayor(s) or other chief executive(s) of local government(s).
(c) For a SONS in the coastal zone, the USCG Commandant may name a National Incident Commander (NIC) who will assume the role of the OSC in communicating with affected parties and the public, and coordinating federal, state, local, and international resources at the national level. This strategic coordination will involve, as appropriate, the NRT, RRT(s), the Governor(s) of affected state(s), and the mayor(s) or other chief executive(s) of local government(s).
(a) If the investigation by the OSC shows that a discharge is a worst case discharge as defined in the ACP, or there is a substantial threat of such a discharge, the OSC shall:
(1) Notify the NSFCC;
(2) Require, where applicable, implementation of the worst case portion of an approved tank vessel or facility response plan required by section 311(j)(5) of the CWA;
(3) Implement the worst case portion of the ACP required by section 311(j)(4) of the CWA; and
(4) Take whatever additional response actions are deemed appropriate.
(b) Under the direction of the OSC, the NSFCC shall coordinate use of private and public personnel and equipment, including strike teams, to remove a worst case discharge and mitigate or prevent a substantial threat of such a discharge.
(a) The OSLTF is available under certain circumstances to fund removal of oil performed under section 311 of the CWA. Those circumstances and the procedures for accessing the OSLTF are described in 33 CFR part 136. The responsible party is liable for costs of federal removal and damages in accordance with section 311(f) of the CWA, section 1002 of the OPA, and other federal laws.
(b) Where the OSC requests assistance from a federal agency, that agency may be reimbursed in accordance with the provisions of 33 CFR part 136. Specific interagency reimbursement agreements may be used when necessary to ensure that the federal resources will be available for a timely response to a discharge of oil.
(c) Procedures for funding the initiation of natural resource damage assessment are covered in 33 CFR part 136.
(d) Response actions other than removal, such as scientific investigations not in support of removal actions or law enforcement, shall be provided by the agency with legal responsibility for those specific actions.
(e) The funding of a response to a discharge from a federally owned, operated, or supervised facility or vessel is the responsibility of the owning, operating, or supervising agency if it is a responsible party.
(f) The following agencies have funds available for certain discharge removal actions:
(1) DOD has two specific sources of funds that may be applicable to an oil discharge under appropriate circumstances. This does not consider military resources that might be made available under specific conditions.
(i) Funds required for removal of a sunken vessel or similar obstruction of navigation are available to the Corps of Engineers through Civil Works Appropriations, Operations and Maintenance, General.
(ii) USN may conduct salvage operations contingent on defense operational commitments, when funded by the requesting agency. Such funding may be requested on a direct cite basis.
(2) Pursuant to Title I of the OPA, the state or states affected by a discharge of oil may act where necessary to remove such discharge. Pursuant to 33 CFR part 136 states may be reimbursed from the OSLTF for the reasonable costs incurred in such a removal.
(a) This subpart establishes methods and criteria for determining the appropriate extent of response authorized by CERCLA and CWA section 311(c):
(1) When there is a release of a hazardous substance into the environment; or
(2) When there is a release into the environment of any pollutant or contaminant that may present an imminent and substantial danger to the public health or welfare of the United States.
(b)
(1) Of a naturally occurring substance in its unaltered form, or altered solely through naturally occurring processes or phenomena, from a location where it is naturally found;
(2) From products that are part of the structure of, and result in exposure within, residential buildings or business or community structures; or
(3) Into public or private drinking water supplies due to deterioration of the system through ordinary use.
(c)
(1) Engage in prompt response;
(2) Provide for state participation in response actions, as described in subpart F of this part;
(3) Conserve Fund monies by encouraging private party response;
(4) Be sensitive to local community concerns;
(5) Consider using treatment technologies;
(6) Involve the Regional Response Team (RRT) in both removal and remedial response actions at appropriate decision-making stages;
(7) Encourage the involvement and sharing of technology by industry and other experts; and
(8) Encourage the involvement of organizations to coordinate responsible party actions, foster site response, and provide technical advice to the public, federal and state governments, and industry.
(d)
(2)(i) Under the authorities described in paragraph (d)(1) of this section, EPA, or the appropriate federal agency, and a state or political subdivision operating pursuant to a contract or cooperative agreement under CERCLA section 104(d)(1), may enter:
(A) Any vessel, facility, establishment, or other place or property where any hazardous substance or pollutant or contaminant may be or has been generated, stored, treated, disposed of, or transported from;
(B) Any vessel, facility, establishment, or other place or property from which, or to which, a hazardous substance or pollutant or contaminant has been, or may have been, released or where such release is or may be threatened;
(C) Any vessel, facility, establishment, or other place or property where entry is necessary to determine the need for response or the appropriate response or to effectuate a response action; or
(D) Any vessel, facility, establishment, or other place, property, or location adjacent to those vessels, facilities, establishments, places, or properties described in paragraphs (d)(2)(i)(A), (B), or (C) of this section.
(ii) Once a determination has been made that there is a reasonable basis to believe that there has been or may be a release, EPA, or the appropriate federal agency, and a state or political subdivision operating pursuant to a contract or cooperative agreement under CERCLA section 104(d)(1), is authorized to enter all vessels, facilities, establishments, places, properties, or locations specified in paragraph (d)(2)(i) of this section, at which the release is believed to be, and all other vessels, facilities, establishments, places, properties, or locations identified in paragraph (d)(2)(i) of this section that are related to the response or are necessary to enter in responding to that release.
(3) The lead agency may designate as its representative solely for the purpose of access, among others, one or more potentially responsible parties, including representatives, employees, agents, and contractors of such parties. EPA, or the appropriate federal agency, may exercise the authority contained in section 104(e) of CERCLA to obtain access for its designated representative. A potentially responsible party may only be designated as a representative of the lead agency where that potentially responsible party has agreed to conduct response activities pursuant to an administrative order or consent decree.
(4)(i) If consent is not granted under the authorities described in paragraph (d)(1) of this section, or if consent is conditioned in any manner, EPA, or the appropriate federal agency, may issue an order pursuant to section 104(e)(5) of CERCLA directing compliance with the request for access made under § 300.400(d)(1). EPA or the appropriate federal agency may ask the Attorney General to commence a civil action to compel compliance with either a request for access or an order directing compliance.
(ii) EPA reserves the right to proceed, where appropriate, under applicable authority other than CERCLA section 104(e).
(iii) The administrative order may direct compliance with a request to enter or inspect any vessel, facility, establishment, place, property, or location described in paragraph (d)(2) of this section.
(iv) Each order shall contain:
(A) A determination by EPA, or the appropriate federal agency, that it is reasonable to believe that there may be or has been a release or threat of a release of a hazardous substance or pollutant or contaminant and a statement of the facts upon which the determination is based;
(B) A description, in light of CERCLA response authorities, of the purpose and estimated scope and duration of the entry, including a description of the specific anticipated activities to be conducted pursuant to the order;
(C) A provision advising the person who failed to consent that an officer or employee of the agency that issued the order will be available to confer with respondent prior to effective date of the order; and
(D) A provision advising the person who failed to consent that a court may impose a penalty of up to $25,000 per
(v) Orders shall be served upon the person or responsible party who failed to consent prior to their effective date. Force shall not be used to compel compliance with an order.
(vi) Orders may not be issued for any criminal investigations.
(e)
(2) Permits, if required, shall be obtained for all response activities conducted off-site.
(f)
(g)
(2) If, based upon paragraph (g)(1) of this section, it is determined that a requirement is not applicable to a specific release, the requirement may still be relevant and appropriate to the circumstances of the release. In evaluating relevance and appropriateness, the factors in paragraphs (g)(2)(i) through (viii) of this section shall be examined, where pertinent, to determine whether a requirement addresses problems or situations sufficiently similar to the circumstances of the release or remedial action contemplated, and whether the requirement is well-suited to the site, and therefore is both relevant and appropriate. The pertinence of each of the following factors will depend, in part, on whether a requirement addresses a chemical, location, or action. The following comparisons shall be made, where pertinent, to determine relevance and appropriateness:
(i) The purpose of the requirement and the purpose of the CERCLA action;
(ii) The medium regulated or affected by the requirement and the medium contaminated or affected at the CERCLA site;
(iii) The substances regulated by the requirement and the substances found at the CERCLA site;
(iv) The actions or activities regulated by the requirement and the remedial action contemplated at the CERCLA site;
(v) Any variances, waivers, or exemptions of the requirement and their availability for the circumstances at the CERCLA site;
(vi) The type of place regulated and the type of place affected by the release or CERCLA action;
(vii) The type and size of structure or facility regulated and the type and size of structure or facility affected by the release or contemplated by the CERCLA action;
(viii) Any consideration of use or potential use of affected resources in the requirement and the use or potential use of the affected resource at the CERCLA site.
(3) In addition to applicable or relevant and appropriate requirements, the lead and support agencies may, as appropriate, identify other advisories, criteria, or guidance to be considered for a particular release. The “to be considered” (TBC) category consists of advisories, criteria, or guidance that were developed by EPA, other federal agencies, or states that may be useful in developing CERCLA remedies.
(4) Only those state standards that are promulgated, are identified by the state in a timely manner, and are more stringent than federal requirements
(5) The lead agency and support agency shall identify their specific requirements that are applicable or relevant and appropriate for a particular site. These agencies shall notify each other, in a timely manner as described in § 300.515(d), of the requirements they have determined to be applicable or relevant and appropriate. When identifying a requirement as an ARAR, the lead agency and support agency shall include a citation to the statute or regulation from which the requirement is derived.
(6) Notification of ARARs shall be according to procedures and timeframes specified in § 300.515 (d)(2) and (h)(2).
(h)
(i)
(2) While much of this subpart is oriented toward federally funded response actions, this subpart may be used as guidance concerning methods and criteria for response actions by other parties under other funding mechanisms. Except as provided in subpart H of this part, nothing in this part is intended to limit the rights of any person to seek recovery of response costs from responsible parties pursuant to CERCLA section 107.
(3) Activities by the federal and state governments in implementing this subpart are discretionary governmental functions. This subpart does not create in any private party a right to federal response or enforcement action. This subpart does not create any duty of the federal government to take any response action at any particular time.
(a) A release may be discovered through:
(1) A report submitted in accordance with section 103(a) of CERCLA, i.e., reportable quantities codified at 40 CFR part 302;
(2) A report submitted to EPA in accordance with section 103(c) of CERCLA;
(3) Investigation by government authorities conducted in accordance with section 104(e) of CERCLA or other statutory authority;
(4) Notification of a release by a federal or state permit holder when required by its permit;
(5) Inventory or survey efforts or random or incidental observation reported by government agencies or the public;
(6) Submission of a citizen petition to EPA or the appropriate federal facility requesting a preliminary assessment, in accordance with section 105(d) of CERCLA;
(7) A report submitted in accordance with section 311(b)(5) of the CWA; and
(8) Other sources.
(b) Any person in charge of a vessel or a facility shall report releases as described in paragraph (a)(1) of this section to the National Response Center (NRC). If direct reporting to the NRC is not practicable, reports may be made to the United States Coast Guard (USCG) on-scene coordinator (OSC) for the geographic area where the release occurs. The EPA predesignated OSC may also be contacted through the regional 24-hour emergency response telephone number. All such reports shall be promptly relayed to the NRC. If it is not possible to notify the NRC or predesignated OSC immediately, reports may be made immediately to the nearest USCG unit. In any event, such person in charge of the vessel or facility shall notify the NRC as soon as possible.
(c) All other reports of releases described under paragraph (a) of this section, except releases reported under paragraphs (a)(2) and (6) of this section,
(d) The NRC will generally need information that will help to characterize the release. This will include, but not be limited to: Location of the release; type(s) of material(s) released; an estimate of the quantity of material released; possible source of the release; and date and time of the release. Reporting under paragraphs (b) and (c) of this section shall not be delayed due to incomplete notification information.
(e) Upon receipt of a notification of a release, the NRC shall promptly notify the appropriate OSC. The OSC shall notify the Governor, or designee, of the state affected by the release.
(f)(1) When the OSC is notified of a release that may require response pursuant to § 300.415(b), a removal site evaluation shall, as appropriate, be promptly undertaken pursuant to § 300.410.
(2) When notification indicates that removal action pursuant to § 300.415(b) is not required, a remedial site evaluation shall, if appropriate, be undertaken by the lead agency pursuant to § 300.420, if one has not already been performed.
(3) If radioactive substances are present in a release, the EPA Radiological Response Coordinator should be notified for evaluation and assistance either directly or via the NRC, consistent with §§ 300.130(e) and 300.145(f).
(g) Release notification made to the NRC under this section does not relieve the owner/operator of a facility from any obligations to which it is subject under SARA Title III or state law. In particular, it does not relieve the owner/operator from the requirements of section 304 of SARA Title III and 40 CFR part 355 and § 300.215(f) of this part for notifying the community emergency coordinator for the appropriate local emergency planning committee of all affected areas and the state emergency response commission of any state affected that there has been a release. Federal agencies are not legally obligated to comply with the requirements of Title III of SARA.
(a) A removal site evaluation includes a removal preliminary assessment and, if warranted, a removal site inspection.
(b) A removal site evaluation of a release identified for possible CERCLA response pursuant to § 300.415 shall, as appropriate, be undertaken by the lead agency as promptly as possible. The lead agency may perform a removal preliminary assessment in response to petitions submitted by a person who is, or may be, affected by a release of a hazardous substance, pollutant, or contaminant pursuant to § 300.420(b)(5).
(c)(1) The lead agency shall, as appropriate, base the removal preliminary assessment on readily available information. A removal preliminary assessment may include, but is not limited to:
(i) Identification of the source and nature of the release or threat of release;
(ii) Evaluation by ATSDR or by other sources, for example, state public health agencies, of the threat to public health;
(iii) Evaluation of the magnitude of the threat;
(iv) Evaluation of factors necessary to make the determination of whether a removal is necessary; and
(v) Determination of whether a nonfederal party is undertaking proper response.
(2) A removal preliminary assessment of releases from hazardous waste management facilities may include collection or review of data such as site management practices, information from generators, photographs, analysis of historical photographs, literature searches, and personal interviews conducted, as appropriate.
(d) A removal site inspection may be performed if more information is needed. Such inspection may include a perimeter (
(e)(1) As part of the evaluation under this section, the OSC shall determine whether a release governed by CWA section 311(c)(1), as amended by OPA section 4201(a), has occurred.
(2) If such a release of a CWA hazardous substance has occurred, the OSC shall determine whether the release results in a substantial threat to the public health or welfare of the United States. Factors to be considered by the OSC in making this determination include, but are not limited to, the size of the release, the character of the release, and the nature of the threat to public health or welfare of the United States. Upon obtaining relevant elements of such information, the OSC shall conduct an evaluation of the threat posed, based on the OSC's experience in assessing other releases, and consultation with senior lead agency officials and readily available authorities on issues outside the OSC's technical expertise.
(f) A removal site evaluation shall be terminated when the OSC or lead agency determines:
(1) There is no release;
(2) The source is neither a vessel nor a facility as defined in § 300.5 of the NCP;
(3) The release involves neither a hazardous substance, nor a pollutant or contaminant that may present an imminent and substantial danger to public health or welfare of the United States;
(4) The release consists of a situation specified in § 300.400(b)(1) through (3) subject to limitations on response;
(5) The amount, quantity, or concentration released does not warrant federal response;
(6) A party responsible for the release, or any other person, is providing appropriate response, and on-scene monitoring by the government is not required; or
(7) The removal site evaluation is completed.
(g) The results of the removal site evaluation shall be documented.
(h) The OSC or lead agency shall ensure that natural resource trustees are promptly notified in order that they may initiate appropriate actions, including those identified in subpart G of this part. The OSC or lead agency shall coordinate all response activities with such affected trustees.
(i) If the removal site evaluation indicates that removal action under § 300.415 is not required, but that remedial action under § 300.430 may be necessary, the lead agency shall, as appropriate, initiate a remedial site evaluation pursuant to § 300.420.
(a)(1) In determining the appropriate extent of action to be taken in response to a given release, the lead agency shall first review the removal site evaluation, any information produced through a remedial site evaluation, if any has been done previously, and the current site conditions, to determine if removal action is appropriate.
(2) Where the responsible parties are known, an effort initially shall be made, to the extent practicable, to determine whether they can and will perform the necessary removal action promptly and properly.
(3) This section does not apply to removal actions taken pursuant to section 104(b) of CERCLA. The criteria for such actions are set forth in section 104(b) of CERCLA.
(b)(1) At any release, regardless of whether the site is included on the National Priorities List (NPL), where the lead agency makes the determination, based on the factors in paragraph (b)(2) of this section, that there is a threat to public health or welfare of the United States or the environment, the lead agency may take any appropriate removal action to abate, prevent, minimize, stabilize, mitigate, or eliminate the release or the threat of release.
(2) The following factors shall be considered in determining the appropriateness of a removal action pursuant to this section:
(i) Actual or potential exposure to nearby human populations, animals, or the food chain from hazardous substances or pollutants or contaminants;
(ii) Actual or potential contamination of drinking water supplies or sensitive ecosystems;
(iii) Hazardous substances or pollutants or contaminants in drums, barrels, tanks, or other bulk storage containers, that may pose a threat of release;
(iv) High levels of hazardous substances or pollutants or contaminants
(v) Weather conditions that may cause hazardous substances or pollutants or contaminants to migrate or be released;
(vi) Threat of fire or explosion;
(vii) The availability of other appropriate federal or state response mechanisms to respond to the release; and
(viii) Other situations or factors that may pose threats to public health or welfare of the United States or the environment.
(3) If the lead agency determines that a removal action is appropriate, actions shall, as appropriate, begin as soon as possible to abate, prevent, minimize, stabilize, mitigate, or eliminate the threat to public health or welfare of the United States or the environment. The lead agency shall, at the earliest possible time, also make any necessary determinations pursuant to paragraph (b)(4) of this section.
(4) Whenever a planning period of at least six months exists before on-site activities must be initiated, and the lead agency determines, based on a site evaluation, that a removal action is appropriate:
(i) The lead agency shall conduct an engineering evaluation/cost analysis (EE/CA) or its equivalent. The EE/CA is an analysis of removal alternatives for a site.
(ii) If environmental samples are to be collected, the lead agency shall develop sampling and analysis plans that shall provide a process for obtaining data of sufficient quality and quantity to satisfy data needs. Sampling and analysis plans shall be reviewed and approved by EPA. The sampling and analysis plans shall consist of two parts:
(A) The field sampling plan, which describes the number, type, and location of samples and the type of analyses; and
(B) The quality assurance project plan, which describes policy, organization, and functional activities and the data quality objectives and measures necessary to achieve adequate data for use in planning and documenting the removal action.
(5) CERCLA fund-financed removal actions, other than those authorized under section 104(b) of CERCLA, shall be terminated after $2 million has been obligated for the action or 12 months have elapsed from the date that removal activities begin on-site, unless the lead agency determines that:
(i) There is an immediate risk to public health or welfare of the United States or the environment; continued response actions are immediately required to prevent, limit, or mitigate an emergency; and such assistance will not otherwise be provided on a timely basis; or
(ii) Continued response action is otherwise appropriate and consistent with the remedial action to be taken.
(c)(1) In carrying out a response to a release of a CWA hazardous substance, as described in CWA section 311(c)(1), as amended by OPA section 4201(a), the OSC may:
(i) Remove or arrange for the removal of a release, and mitigate or prevent a substantial threat of a release, at any time;
(ii) Direct or monitor all federal, state, and private actions to remove a release; and
(iii) Remove and, if necessary, destroy a vessel releasing or threatening to release CWA hazardous substances, by whatever means are available.
(2) If the investigation by the OSC under § 300.410 shows that the release of a CWA hazardous substance results in a substantial threat to public health or welfare of the United States, the OSC shall direct all federal, state, or private actions to remove the release or to mitigate or prevent the threat of such a release, as appropriate. In directing the response, the OSC may act without regard to any other provision of law governing contracting procedures or employment of personnel by the federal government to:
(i) Remove or arrange for the removal of the release;
(ii) Mitigate or prevent the substantial threat of the release; and
(iii) Remove and, if necessary, destroy a vessel releasing, or threatening to release, by whatever means are available.
(3) In the case of a release of a CWA hazardous substance posing a substantial threat to public health or welfare of the United States, the OSC shall:
(i) Assess opportunities for the use of various special teams and other assistance described in § 300.145, as appropriate;
(ii) Request immediate activation of the RRT; and
(iii) Take whatever additional response actions are deemed appropriate. When requested by the OSC, the lead agency or RRT shall dispatch appropriate personnel to the scene of the release to assist the OSC. This assistance may include technical support in the agency's areas of expertise and disseminating information to the public in accordance with § 300.155. The lead agency shall ensure that a contracting officer is available on-scene, at the request of the OSC.
(d) Removal actions shall, to the extent practicable, contribute to the efficient performance of any anticipated long-term remedial action with respect to the release concerned.
(e) The following removal actions are, as a general rule, appropriate in the types of situations shown; however, this list is not exhaustive and is not intended to prevent the lead agency from taking any other actions deemed necessary under CERCLA, CWA section 311, or other appropriate federal or state enforcement or response authorities, and the list does not create a duty on the lead agency to take action at any particular time:
(1) Fences, warning signs, or other security or site control precautions—where humans or animals have access to the release;
(2) Drainage controls, for example, run-off or run-on diversion—where needed to reduce migration of hazardous substances or pollutants or contaminants off-site or to prevent precipitation or run-off from other sources, for example, flooding, from entering the release area from other areas;
(3) Stabilization of berms, dikes, or impoundments or drainage or closing of lagoons—where needed to maintain the integrity of the structures;
(4) Capping of contaminated soils or sludges—where needed to reduce migration of hazardous substances or pollutants or contaminants into soil, ground or surface water, or air;
(5) Using chemicals and other materials to retard the spread of the release or to mitigate its effects—where the use of such chemicals will reduce the spread of the release;
(6) Excavation, consolidation, or removal of highly contaminated soils from drainage or other areas—where such actions will reduce the spread of, or direct contact with, the contamination;
(7) Removal of drums, barrels, tanks, or other bulk containers that contain or may contain hazardous substances or pollutants or contaminants—where it will reduce the likelihood of spillage; leakage; exposure to humans, animals, or food chain; or fire or explosion;
(8) Containment, treatment, disposal, or incineration of hazardous materials—where needed to reduce the likelihood of human, animal, or food chain exposure; or
(9) Provision of alternative water supply—where necessary immediately to reduce exposure to contaminated household water and continuing until such time as local authorities can satisfy the need for a permanent remedy.
(f) Where necessary to protect public health or welfare, the lead agency shall request that FEMA conduct a temporary relocation or that state/local officials conduct an evacuation.
(g) If the lead agency determines that the removal action will not fully address the threat posed by the release and the release may require remedial action, the lead agency shall ensure an orderly transition from removal to remedial response activities.
(h) CERCLA removal actions conducted by states under cooperative agreements, described in subpart F of this part, shall comply with all requirements of this section.
(i) Facilities operated by a state or political subdivision at the time of disposal require a state cost share of at least 50 percent of Fund-financed response costs if a Fund-financed remedial action is conducted.
(j) Fund-financed removal actions under CERCLA section 104 and removal actions pursuant to CERCLA section 106 shall, to the extent practicable considering the exigencies of the situation, attain applicable or relevant and appropriate requirements (ARARs) under
(1) The urgency of the situation; and
(2) The scope of the removal action to be conducted.
(k) Removal actions pursuant to section 106 or 122 of CERCLA are not subject to the following requirements of this section:
(1) Section 300.415(a)(2) requirement to locate responsible parties and have them undertake the response;
(2) Section 300.415(b)(2)(vii) requirement to consider the availability of other appropriate federal or state response and enforcement mechanisms to respond to the release;
(3) Section 300.415(b)(5) requirement to terminate response after $2 million has been obligated or 12 months have elapsed from the date of the initial response; and
(4) Section 300.415(g) requirement to assure an orderly transition from removal to remedial action.
(l) To the extent practicable, provision for post-removal site control following a CERCLA Fund-financed removal action at both NPL and non-NPL sites is encouraged to be made prior to the initiation of the removal action. Such post-removal site control includes actions necessary to ensure the effectiveness and integrity of the removal action after the completion of the on-site removal action or after the $2 million or 12-month statutory limits are reached for sites that do not meet the exemption criteria in paragraph (b)(5) of this section. Post-removal site control may be conducted by:
(1) The affected state or political subdivision thereof or local units of government for any removal;
(2) Potentially responsible parties; or
(3) EPA's remedial program for some federal-lead Fund-financed responses at NPL sites.
(m) OSCs/RPMs conducting removal actions shall submit OSC reports to the RRT as required by § 300.165.
(n)
(2) For CERCLA actions where, based on the site evaluation, the lead agency determines that a removal is appropriate, and that less than six months exists before on-site removal activity must begin, the lead agency shall:
(i) Publish a notice of availability of the administrative record file established pursuant to § 300.820 in a major local newspaper of general circulation within 60 days of initiation of on-site removal activity;
(ii) Provide a public comment period, as appropriate, of not less than 30 days from the time the administrative record file is made available for public inspection, pursuant to § 300.820(b)(2); and
(iii) Prepare a written response to significant comments pursuant to § 300.820(b)(3).
(3) For CERCLA removal actions where on-site action is expected to extend beyond 120 days from the initiation of on-site removal activities, the lead agency shall by the end of the 120-day period:
(i) Conduct interviews with local officials, community residents, public interest groups, or other interested or affected parties, as appropriate, to solicit their concerns, information needs, and how or when citizens would like to be involved in the Superfund process;
(ii) Prepare a formal community relations plan (CRP) based on the community interviews and other relevant information, specifying the community
(iii) Establish at least one local information repository at or near the location of the response action. The information repository should contain items made available for public information. Further, an administrative record file established pursuant to subpart I for all removal actions shall be available for public inspection in at least one of the repositories. The lead agency shall inform the public of the establishment of the information repository and provide notice of availability of the administrative record file for public review. All items in the repository shall be available for public inspection and copying.
(4) Where, based on the site evaluation, the lead agency determines that a CERCLA removal action is appropriate and that a planning period of at least six months exists prior to initiation of the on-site removal activities, the lead agency shall at a minimum:
(i) Comply with the requirements set forth in paragraphs (n)(3)(i), (ii), and (iii) of this section, prior to the completion of the EE/CA, or its equivalent, except that the information repository and the administrative record file will be established no later than when the EE/CA approval memorandum is signed;
(ii) Publish a notice of availability and brief description of the EE/CA in a major local newspaper of general circulation pursuant to § 300.820;
(iii) Provide a reasonable opportunity, not less than 30 calendar days, for submission of written and oral comments after completion of the EE/CA pursuant to § 300.820(a). Upon timely request, the lead agency will extend the public comment period by a minimum of 15 days; and
(iv) Prepare a written response to significant comments pursuant to § 300.820(a).
(a)
(b)
(i) Eliminate from further consideration those sites that pose no threat to public health or the environment;
(ii) Determine if there is any potential need for removal action;
(iii) Set priorities for site inspections; and
(iv) Gather existing data to facilitate later evaluation of the release pursuant to the Hazard Ranking System (HRS) if warranted.
(2) A remedial PA shall consist of a review of existing information about a release such as information on the pathways of exposure, exposure targets, and source and nature of release. A remedial PA shall also include an off-site reconnaissance as appropriate. A remedial PA may include an on-site reconnaissance where appropriate.
(3) If the remedial PA indicates that a removal action may be warranted, the lead agency shall initiate removal evaluation pursuant to § 300.410.
(4) In performing a remedial PA, the lead agency may complete the EPA Preliminary Assessment form, available from EPA regional offices, or its equivalent, and shall prepare a PA report, which shall include:
(i) A description of the release;
(ii) A description of the probable nature of the release; and
(iii) A recommendation on whether further action is warranted, which lead agency should conduct further action, and whether an SI or removal action or both should be undertaken.
(5) Any person may petition the lead federal agency (EPA or the appropriate federal agency in the case of a release or suspected release from a federal facility), to perform a PA of a release when such person is, or may be, affected by a release of a hazardous substance, pollutant, or contaminant. Such petitions shall be addressed to the EPA Regional Administrator for
(i) Petitions shall be signed by the petitioner and shall contain the following:
(A) The full name, address, and phone number of petitioner;
(B) A description, as precisely as possible, of the location of the release; and
(C) How the petitioner is or may be affected by the release.
(ii) Petitions should also contain the following information to the extent available:
(A) What type of substances were or may be released;
(B) The nature of activities that have occurred where the release is located; and
(C) Whether local and state authorities have been contacted about the release.
(iii) The lead federal agency shall complete a remedial or removal PA within one year of the date of receipt of a complete petition pursuant to paragraph (b)(5) of this section, if one has not been performed previously, unless the lead federal agency determines that a PA is not appropriate. Where such a determination is made, the lead federal agency shall notify the petitioner and will provide a reason for the determination.
(iv) When determining if performance of a PA is appropriate, the lead federal agency shall take into consideration:
(A) Whether there is information indicating that a release has occurred or there is a threat of a release of a hazardous substance, pollutant, or contaminant; and
(B) Whether the release is eligible for response under CERCLA.
(c)
(i) Eliminate from further consideration those releases that pose no significant threat to public health or the environment;
(ii) Determine the potential need for removal action;
(iii) Collect or develop additional data, as appropriate, to evaluate the release pursuant to the HRS; and
(iv) Collect data in addition to that required to score the release pursuant to the HRS, as appropriate, to better characterize the release for more effective and rapid initiation of the RI/FS or response under other authorities.
(2) The remedial SI shall build upon the information collected in the remedial PA. The remedial SI shall involve, as appropriate, both on- and off-site field investigatory efforts, and sampling.
(3) If the remedial SI indicates that removal action may be appropriate, the lead agency shall initiate removal site evaluation pursuant to § 300.410.
(4) Prior to conducting field sampling as part of site inspections, the lead agency shall develop sampling and analysis plans that shall provide a process for obtaining data of sufficient quality and quantity to satisfy data needs. The sampling and analysis plans shall consist of two parts:
(i) The field sampling plan, which describes the number, type, and location of samples, and the type of analyses, and
(ii) The quality assurance project plan (QAPP), which describes policy, organization, and functional activities, and the data quality objectives and measures necessary to achieve adequate data for use in site evaluation and hazard ranking system activities.
(5) Upon completion of a remedial SI, the lead agency shall prepare a report that includes the following:
(i) A description/history/nature of waste handling;
(ii) A description of known contaminants;
(iii) A description of pathways of migration of contaminants;
(iv) An identification and description of human and environmental targets; and
(v) A recommendation on whether further action is warranted.
(a)
(b)
(1) Only those releases included on the NPL shall be considered eligible for Fund-financed remedial action. Removal actions (including remedial planning activities, RI/FSs, and other actions taken pursuant to CERCLA section 104(b)) are not limited to NPL sites.
(2) Inclusion of a release on the NPL does not imply that monies will be expended, nor does the rank of a release on the NPL establish the precise priorities for the allocation of Fund resources. EPA may also pursue other appropriate authorities to remedy the release, including enforcement actions under CERCLA and other laws. A site's rank on the NPL serves, along with other factors, including enforcement actions, as a basis to guide the allocation of Fund resources among releases.
(3) Federal facilities that meet the criteria identified in paragraph (c) of this section are eligible for inclusion on the NPL. Except as provided by CERCLA sections 111(e)(3) and 111(c), federal facilities are not eligible for Fund-financed remedial actions.
(4) Inclusion on the NPL is not a precondition to action by the lead agency under CERCLA sections 106 or 122 or to action under CERCLA section 107 for recovery of non-Fund-financed costs or Fund-financed costs other than Fund-financed remedial construction costs.
(c)
(1) The release scores sufficiently high pursuant to the Hazard Ranking System described in appendix A to this part.
(2) A state (not including Indian tribes) has designated a release as its highest priority. States may make only one such designation; or
(3) The release satisfies all of the following criteria:
(i) The Agency for Toxic Substances and Disease Registry has issued a health advisory that recommends dissociation of individuals from the release;
(ii) EPA determines that the release poses a significant threat to public health; and
(iii) EPA anticipates that it will be more cost-effective to use its remedial authority than to use removal authority to respond to the release.
(d)
(1) Lead agencies may submit HRS scoring packages to EPA anytime throughout the year.
(2) EPA shall review lead agencies' HRS scoring packages and revise them as appropriate. EPA shall develop any additional HRS scoring packages on releases known to EPA.
(3) EPA shall compile the NPL based on the methods identified in paragraph (c) of this section.
(4) EPA shall update the NPL at least once a year.
(5) To ensure public involvement during the proposal to add a release to the NPL, EPA shall:
(i) Publish the proposed rule in the
(ii) Publish the final rule in the
(6) Releases may be categorized on the NPL when deemed appropriate by EPA.
(e)
(1) EPA shall consult with the state on proposed deletions from the NPL prior to developing the notice of intent to delete. In making a determination to delete a release from the NPL, EPA shall consider, in consultation with the state, whether any of the following criteria has been met:
(i) Responsible parties or other persons have implemented all appropriate response actions required;
(ii) All appropriate Fund-financed response under CERCLA has been implemented, and no further response action
(iii) The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, taking of remedial measures is not appropriate.
(2) Releases shall not be deleted from the NPL until the state in which the release was located has concurred on the proposed deletion. EPA shall provide the state 30 working days for review of the deletion notice prior to its publication in the
(3) All releases deleted from the NPL are eligible for further Fund-financed remedial actions should future conditions warrant such action. Whenever there is a significant release from a site deleted from the NPL, the site shall be restored to the NPL without application of the HRS.
(4) To ensure public involvement during the proposal to delete a release from the NPL, EPA shall:
(i) Publish a notice of intent to delete in the
(ii) In a major local newspaper of general circulation at or near the release that is proposed for deletion, publish a notice of availability of the notice of intent to delete;
(iii) Place copies of information supporting the proposed deletion in the information repository, described in § 300.430(c)(2)(iii), at or near the release proposed for deletion. These items shall be available for public inspection and copying; and
(iv) Respond to each significant comment and any significant new data submitted during the comment period and include this response document in the final deletion package.
(5) EPA shall place the final deletion package in the local information repository once the notice of final deletion has been published in the
(a)
(i)
(ii)
(A) Sites should generally be remediated in operable units when early actions are necessary or appropriate to achieve significant risk reduction quickly, when phased analysis and response is necessary or appropriate given the size or complexity of the site, or to expedite the completion of total site cleanup.
(B) Operable units, including interim action operable units, should not be inconsistent with nor preclude implementation of the expected final remedy.
(C) Site-specific data needs, the evaluation of alternatives, and the documentation of the selected remedy should reflect the scope and complexity of the site problems being addressed.
(iii)
(A) EPA expects to use treatment to address the principal threats posed by a site, wherever practicable. Principal threats for which treatment is most likely to be appropriate include liquids, areas contaminated with high concentrations of toxic compounds, and highly mobile materials.
(B) EPA expects to use engineering controls, such as containment, for waste that poses a relatively low long-term threat or where treatment is impracticable.
(C) EPA expects to use a combination of methods, as appropriate, to achieve protection of human health and the environment. In appropriate site situations, treatment of the principal threats posed by a site, with priority placed on treating waste that is liquid, highly toxic or highly mobile, will be combined with engineering controls (such as containment) and institutional controls, as appropriate, for treatment residuals and untreated waste.
(D) EPA expects to use institutional controls such as water use and deed restrictions to supplement engineering controls as appropriate for short- and long-term management to prevent or limit exposure to hazardous substances, pollutants, or contaminants. Institutional controls may be used during the conduct of the remedial investigation/feasibility study (RI/FS) and implementation of the remedial action and, where necessary, as a component of the completed remedy. The use of institutional controls shall not substitute for active response measures (e.g., treatment and/or containment of source material, restoration of ground waters to their beneficial uses) as the sole remedy unless such active measures are determined not to be practicable, based on the balancing of trade-offs among alternatives that is conducted during the selection of remedy.
(E) EPA expects to consider using innovative technology when such technology offers the potential for comparable or superior treatment performance or implementability, fewer or lesser adverse impacts than other available approaches, or lower costs for similar levels of performance than demonstrated technologies.
(F) EPA expects to return usable ground waters to their beneficial uses wherever practicable, within a timeframe that is reasonable given the particular circumstances of the site. When restoration of ground water to beneficial uses is not practicable, EPA expects to prevent further migration of the plume, prevent exposure to the contaminated ground water, and evaluate further risk reduction.
(2)
(b)
(1) Assemble and evaluate existing data on the site, including the results of any removal actions, remedial preliminary assessment and site inspections, and the NPL listing process.
(2) Develop a conceptual understanding of the site based on the evaluation of existing data described in paragraph (b)(1) of this section.
(3) Identify likely response scenarios and potentially applicable technologies and operable units that may address site problems.
(4) Undertake limited data collection efforts or studies where this information will assist in scoping the RI/FS or accelerate response actions, and begin to identify the need for treatability studies, as appropriate.
(5) Identify the type, quality, and quantity of the data that will be collected during the RI/FS to support decisions regarding remedial response activities.
(6) Prepare site-specific health and safety plans that shall specify, at a minimum, employee training and protective equipment, medical surveillance requirements, standard operating procedures, and a contingency plan
(7) If natural resources are or may be injured by the release, ensure that state and federal trustees of the affected natural resources have been notified in order that the trustees may initiate appropriate actions, including those identified in subpart G of this part. The lead agency shall seek to coordinate necessary assessments, evaluations, investigations, and planning with such state and federal trustees.
(8) Develop sampling and analysis plans that shall provide a process for obtaining data of sufficient quality and quantity to satisfy data needs. Sampling and analysis plans shall be reviewed and approved by EPA. The sampling and analysis plans shall consist of two parts:
(i) The field sampling plan, which describes the number, type, and location of samples and the type of analyses; and
(ii) The quality assurance project plan, which describes policy, organization, and functional activities and the data quality objectives and measures necessary to achieve adequate data for use in selecting the appropriate remedy.
(9) Initiate the identification of potential federal and state ARARs and, as appropriate, other criteria, advisories, or guidance to be considered.
(c)
(2) The lead agency shall provide for the conduct of the following community relations activities, to the extent practicable, prior to commencing field work for the remedial investigation:
(i) Conducting interviews with local officials, community residents, public interest groups, or other interested or affected parties, as appropriate, to solicit their concerns and information needs, and to learn how and when citizens would like to be involved in the Superfund process.
(ii) Preparing a formal community relations plan (CRP), based on the community interviews and other relevant information, specifying the community relations activities that the lead agency expects to undertake during the remedial response. The purpose of the CRP is to:
(A) Ensure the public appropriate opportunities for involvement in a wide variety of site-related decisions, including site analysis and characterization, alternatives analysis, and selection of remedy;
(B) Determine, based on community interviews, appropriate activities to ensure such public involvement, and
(C) Provide appropriate opportunities for the community to learn about the site.
(iii) Establishing at least one local information repository at or near the location of the response action. Each information repository should contain a copy of items made available to the public, including information that describes the technical assistance grants application process. The lead agency shall inform interested parties of the establishment of the information repository.
(iv) Informing the community of the availability of technical assistance grants.
(3) For PRP actions, the lead agency shall plan and implement the community relations program at a site. PRPs may participate in aspects of the community relations program at the discretion of and with oversight by the lead agency.
(4) The lead agency may conduct technical discussions involving PRPs and the public. These technical discussions may be held separately from, but contemporaneously with, the negotiations/settlement discussions.
(5) In addition, the following provisions specifically apply to enforcement actions:
(i) Lead agencies entering into an enforcement agreement with de minimis parties under CERCLA section 122(g) or cost recovery settlements under section 122(h) shall publish a notice of the proposed agreement in the
(ii) Where the enforcement agreement is embodied in a consent decree, public notice and opportunity for public comment shall be provided in accordance with 28 CFR 50.7.
(d)
(2) The lead agency shall characterize the nature of and threat posed by the hazardous substances and hazardous materials and gather data necessary to assess the extent to which the release poses a threat to human health or the environment or to support the analysis and design of potential response actions by conducting, as appropriate, field investigations to assess the following factors:
(i) Physical characteristics of the site, including important surface features, soils, geology, hydrogeology, meteorology, and ecology;
(ii) Characteristics or classifications of air, surface water, and ground water;
(iii) The general characteristics of the waste, including quantities, state, concentration, toxicity, propensity to bioaccumulate, persistence, and mobility;
(iv) The extent to which the source can be adequately identified and characterized;
(v) Actual and potential exposure pathways through environmental media;
(vi) Actual and potential exposure routes, for example, inhalation and ingestion; and
(vii) Other factors, such as sensitive populations, that pertain to the characterization of the site or support the analysis of potential remedial action alternatives.
(3) The lead and support agency shall identify their respective potential ARARs related to the location of and contaminants at the site in a timely manner. The lead and support agencies may also, as appropriate, identify other pertinent advisories, criteria, or guidance in a timely manner (see § 300.400(g)(3)).
(4) Using the data developed under paragraphs (d)(1) and (2) of this section, the lead agency shall conduct a site-specific baseline risk assessment to characterize the current and potential threats to human health and the environment that may be posed by contaminants migrating to ground water or surface water, releasing to air, leaching through soil, remaining in the soil, and bioaccumulating in the food chain. The results of the baseline risk assessment will help establish acceptable exposure levels for use in developing remedial alternatives in the FS, as described in paragraph (e) of this section.
(e)
(2) Alternatives shall be developed that protect human health and the environment by recycling waste or by eliminating, reducing, and/or controlling risks posed through each pathway by a site. The number and type of alternatives to be analyzed shall be determined at each site, taking into account the scope, characteristics, and complexity of the site problem that is being addressed. In developing and, as appropriate, screening the alternatives, the lead agency shall:
(i) Establish remedial action objectives specifying contaminants and media of concern, potential exposure pathways, and remediation goals. Initially, preliminary remediation goals are developed based on readily available information, such as chemical-specific ARARs or other reliable information. Preliminary remediation goals should be modified, as necessary, as more information becomes available during the RI/FS. Final remediation goals will be determined when the remedy is selected. Remediation goals shall establish acceptable exposure levels that are protective of human health and the environment and shall be developed by considering the following:
(A) Applicable or relevant and appropriate requirements under federal environmental or state environmental or facility siting laws, if available, and the following factors:
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(B) Maximum contaminant level goals (MCLGs), established under the Safe Drinking Water Act, that are set at levels above zero, shall be attained by remedial actions for ground or surface waters that are current or potential sources of drinking water, where the MCLGs are relevant and appropriate under the circumstances of the release based on the factors in § 300.400(g)(2). If an MCLG is determined not to be relevant and appropriate, the corresponding maximum contaminant level (MCL) shall be attained where relevant and appropriate to the circumstances of the release.
(C) Where the MCLG for a contaminant has been set at a level of zero, the MCL promulgated for that contaminant under the Safe Drinking Water Act shall be attained by remedial actions for ground or surface waters that are current or potential sources of drinking water, where the MCL is relevant and appropriate under the circumstances of the release based on the factors in § 300.400(g)(2).
(D) In cases involving multiple contaminants or pathways where attainment of chemical-specific ARARs will result in cumulative risk in excess of 10
(E) Water quality criteria established under sections 303 or 304 of the Clean Water Act shall be attained where relevant and appropriate under the circumstances of the release.
(F) An alternate concentration limit (ACL) may be established in accordance with CERCLA section 121(d)(2)(B)(ii).
(G) Environmental evaluations shall be performed to assess threats to the environment, especially sensitive habitats and critical habitats of species protected under the Endangered Species Act.
(ii) Identify and evaluate potentially suitable technologies, including innovative technologies;
(iii) Assemble suitable technologies into alternative remedial actions.
(3) For source control actions, the lead agency shall develop, as appropriate:
(i) A range of alternatives in which treatment that reduces the toxicity, mobility, or volume of the hazardous substances, pollutants, or contaminants is a principal element. As appropriate, this range shall include an alternative that removes or destroys hazardous substances, pollutants, or contaminants to the maximum extent feasible, eliminating or minimizing, to the degree possible, the need for long-term management. The lead agency also shall develop, as appropriate, other alternatives which, at a minimum, treat the principal threats posed by the site but vary in the degree of treatment employed and the quantities and characteristics of the treatment residuals and untreated waste that must be managed; and
(ii) One or more alternatives that involve little or no treatment, but provide protection of human health and the environment primarily by preventing or controlling exposure to hazardous substances, pollutants, or contaminants, through engineering controls, for example, containment, and, as necessary, institutional controls to protect human health and the environment and to assure continued effectiveness of the response action.
(4) For ground-water response actions, the lead agency shall develop a limited number of remedial alternatives that attain site-specific remediation levels within different restoration time periods utilizing one or more different technologies.
(5) The lead agency shall develop one or more innovative treatment technologies for further consideration if those technologies offer the potential for comparable or superior performance or implementability; fewer or lesser adverse impacts than other available approaches; or lower costs for similar levels of performance than demonstrated treatment technologies.
(6) The no-action alternative, which may be no further action if some removal or remedial action has already occurred at the site, shall be developed.
(7) As appropriate, and to the extent sufficient information is available, the short- and long-term aspects of the following three criteria shall be used to guide the development and screening of remedial alternatives:
(i)
(ii)
(iii)
(8) The lead agency shall notify the support agency of the alternatives that will be evaluated in detail to facilitate the identification of ARARs and, as appropriate, pertinent advisories, criteria, or guidance to be considered.
(9)
(ii) The detailed analysis consists of an assessment of individual alternatives against each of nine evaluation criteria and a comparative analysis that focuses upon the relative performance of each alternative against those criteria.
(iii)
(A)
(B)
(C)
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(D)
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(E)
(
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(F)
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(G)
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(H)
(
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(I)
(f)
(i) The criteria noted in paragraph (e)(9)(iii) of this section are used to select a remedy. These criteria are categorized into three groups.
(A)
(B)
(C)
(ii) The selection of a remedial action is a two-step process and shall proceed in accordance with § 300.515(e). First, the lead agency, in conjunction with the support agency, identifies a preferred alternative and presents it to the public in a proposed plan, for review and comment. Second, the lead
(A) Each remedial action selected shall be protective of human health and the environment.
(B) On-site remedial actions selected in a ROD must attain those ARARs that are identified at the time of ROD signature or provide grounds for invoking a waiver under § 300.430(f)(1)(ii)(C).
(
(
(C) An alternative that does not meet an ARAR under federal environmental or state environmental or facility siting laws may be selected under the following circumstances:
(
(
(
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(
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(D) Each remedial action selected shall be cost-effective, provided that it first satisfies the threshold criteria set forth in § 300.430(f)(1)(ii)(A) and (B). Cost-effectiveness is determined by evaluating the following three of the five balancing criteria noted in § 300.430(f)(1)(i)(B) to determine overall effectiveness: long-term effectiveness and permanence, reduction of toxicity, mobility, or volume through treatment, and short-term effectiveness. Overall effectiveness is then compared to cost to ensure that the remedy is cost-effective. A remedy shall be cost-effective if its costs are proportional to its overall effectiveness.
(E) Each remedial action shall utilize permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable. This requirement shall be fulfilled by selecting the alternative that satisfies paragraph (f)(1)(ii)(A) and (B) of this section and provides the best balance of trade-offs among alternatives in terms of the five primary balancing criteria noted in paragraph (f)(1)(i)(B) of this section. The balancing shall emphasize long-term effectiveness and reduction of toxicity, mobility, or volume through treatment. The balancing shall also consider the preference for treatment as a principal element and the bias against off-site land disposal of untreated waste. In making the determination under this paragraph, the modifying criteria of state acceptance and community acceptance described
(2)
(i) Provide a brief summary description of the remedial alternatives evaluated in the detailed analysis established under paragraph (e)(9) of this section;
(ii) Identify and provide a discussion of the rationale that supports the preferred alternative;
(iii) Provide a summary of any formal comments received from the support agency; and
(iv) Provide a summary explanation of any proposed waiver identified under paragraph (f)(1)(ii)(C) of this section from an ARAR.
(3)
(A) Publish a notice of availability and brief analysis of the proposed plan in a major local newspaper of general circulation;
(B) Make the proposed plan and supporting analysis and information available in the administrative record required under subpart I of this part;
(C) Provide a reasonable opportunity, not less than 30 calendar days, for submission of written and oral comments on the proposed plan and the supporting analysis and information located in the information repository, including the RI/FS. Upon timely request, the lead agency will extend the public comment period by a minimum of 30 additional days;
(D) Provide the opportunity for a public meeting to be held during the public comment period at or near the site at issue regarding the proposed plan and the supporting analysis and information;
(E) Keep a transcript of the public meeting held during the public comment period pursuant to CERCLA section 117(a) and make such transcript available to the public; and
(F) Prepare a written summary of significant comments, criticisms, and new relevant information submitted during the public comment period and the lead agency response to each issue. This responsiveness summary shall be made available with the record of decision.
(ii) After publication of the proposed plan and prior to adoption of the selected remedy in the record of decision, if new information is made available that significantly changes the basic features of the remedy with respect to scope, performance, or cost, such that the remedy significantly differs from the original proposal in the proposed plan and the supporting analysis and information, the lead agency shall:
(A) Include a discussion in the record of decision of the significant changes and reasons for such changes, if the lead agency determines such changes could be reasonably anticipated by the public based on the alternatives and other information available in the proposed plan or the supporting analysis and information in the administrative record; or
(B) Seek additional public comment on a revised proposed plan, when the lead agency determines the change could not have been reasonably anticipated by the public based on the information available in the proposed plan or the supporting analysis and information in the administrative record. The lead agency shall, prior to adoption of the selected remedy in the ROD, issue a revised proposed plan, which
(4)
(ii) If a remedial action is selected that results in hazardous substances, pollutants, or contaminants remaining at the site above levels that allow for unlimited use and unrestricted exposure, the lead agency shall review such action no less often than every five years after initiation of the selected remedial action.
(iii) The process for selection of a remedial action at a federal facility on the NPL, pursuant to CERCLA section 120, shall entail:
(A) Joint selection of remedial action by the head of the relevant department, agency, or instrumentality and EPA; or
(B) If mutual agreement on the remedy is not reached, selection of the remedy is made by EPA.
(5)
(ii) The ROD shall describe the following statutory requirements as they relate to the scope and objectives of the action:
(A) How the selected remedy is protective of human health and the environment, explaining how the remedy eliminates, reduces, or controls exposures to human and environmental receptors;
(B) The federal and state requirements that are applicable or relevant and appropriate to the site that the remedy will attain;
(C) The applicable or relevant and appropriate requirements of other federal and state laws that the remedy will not meet, the waiver invoked, and the justification for invoking the waiver;
(D) How the remedy is cost-effective, i.e., explaining how the remedy provides overall effectiveness proportional to its costs;
(E) How the remedy utilizes permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable; and
(F) Whether the preference for remedies employing treatment which permanently and significantly reduces the toxicity, mobility, or volume of the hazardous substances, pollutants, or contaminants as a principal element is or is not satisfied by the selected remedy. If this preference is not satisfied, the record of decision must explain why a remedial action involving such reductions in toxicity, mobility, or volume was not selected.
(iii) The ROD also shall:
(A) Indicate, as appropriate, the remediation goals, discussed in paragraph (e)(2)(i) of this section, that the remedy is expected to achieve. Performance shall be measured at appropriate locations in the ground water, surface water, soils, air, and other affected environmental media. Measurement relating to the performance of the treatment processes and the engineering controls may also be identified, as appropriate;
(B) Discuss significant changes and the response to comments described in paragraph (f)(3)(i)(F) of this section;
(C) Describe whether hazardous substances, pollutants, or contaminants will remain at the site such that a review of the remedial action under paragraph (f)(4)(ii) of this section no less often than every five years shall be required; and
(D) When appropriate, provide a commitment for further analysis and selection of long-term response measures within an appropriate time-frame.
(6)
(i) Publish a notice of the availability of the ROD in a major local newspaper of general circulation; and
(ii) Make the record of decision available for public inspection and copying at or near the facility at issue prior to the commencement of any remedial action.
(a)
(b)
(2) During the course of the RD/RA, the lead agency shall be responsible for ensuring that all federal and state requirements that are identified in the ROD as applicable or relevant and appropriate requirements for the action are met. If waivers from any ARARs are involved, the lead agency shall be responsible for ensuring that the conditions of the waivers are met.
(c)
(2) After the adoption of the ROD, if the remedial action or enforcement action taken, or the settlement or consent decree entered into, differs significantly from the remedy selected in the ROD with respect to scope, performance, or cost, the lead agency shall consult with the support agency, as appropriate, and shall either:
(i) Publish an explanation of significant differences when the differences in the remedial or enforcement action, settlement, or consent decree significantly change but do not fundamentally alter the remedy selected in the ROD with respect to scope, performance, or cost. To issue an explanation of significant differences, the lead agency shall:
(A) Make the explanation of significant differences and supporting information available to the public in the administrative record established under § 300.815 and the information repository; and
(B) Publish a notice that briefly summarizes the explanation of significant differences, including the reasons for such differences, in a major local newspaper of general circulation; or
(ii) Propose an amendment to the ROD if the differences in the remedial or enforcement action, settlement, or consent decree fundamentally alter the basic features of the selected remedy with respect to scope, performance, or cost. To amend the ROD, the lead agency, in conjunction with the support agency, as provided in § 300.515(e), shall:
(A) Issue a notice of availability and brief description of the proposed amendment to the ROD in a major local newspaper of general circulation;
(B) Make the proposed amendment to the ROD and information supporting the decision available for public comment;
(C) Provide a reasonable opportunity, not less than 30 calendar days, for submission of written or oral comments on the amendment to the ROD. Upon
(D) Provide the opportunity for a public meeting to be held during the public comment period at or near the facility at issue;
(E) Keep a transcript of comments received at the public meeting held during the public comment period;
(F) Include in the amended ROD a brief explanation of the amendment and the response to each of the significant comments, criticisms, and new relevant information submitted during the public comment period;
(G) Publish a notice of the availability of the amended ROD in a major local newspaper of general circulation; and
(H) Make the amended ROD and supporting information available to the public in the administrative record and information repository prior to the commencement of the remedial action affected by the amendment.
(3) After the completion of the final engineering design, the lead agency shall issue a fact sheet and provide, as appropriate, a public briefing prior to the initiation of the remedial action.
(d)
(i) Include appropriate language in the solicitation requiring potential prime contractors to submit information on their status, as well as the status of their subcontractors, parent companies, and affiliates, as potentially responsible parties at the site.
(ii) Require potential prime contractors to certify that, to the best of their knowledge, they and their potential subcontractors, parent companies, and affiliates have disclosed all information described in § 300.435(d)(1)(i) or that no such information exists, and that any such information discovered after submission of their bid or proposal or contract award will be disclosed immediately.
(2) Prior to contract award, the lead agency shall evaluate the information provided by the potential prime contractors and:
(i) Determine whether they have conflicts of interest that could significantly impact the performance of the contract or the liability of potential prime contractors or subcontractors.
(ii) If a potential prime contractor or subcontractor has a conflict of interest that cannot be avoided or otherwise resolved, and using that potential prime contractor or subcontractor to conduct RD/RA or O&M work under a Fund-financed action would not be in the best interests of the state or federal government, an offeror or bidder contemplating use of that prime contractor or subcontractor may be declared nonresponsible or ineligible for award in accordance with appropriate acquisition regulations, and the contract may be awarded to the next eligible offeror or bidder.
(e)
(i) Additional work is found to be needed as a result of such unforeseen situations as newly discovered sources, types, or quantities of hazardous substances at a facility; and
(ii) Performance of the complete RA requires the lead agency to rebid the contract because the existing contract does not encompass this newly discovered work.
(2) The cost of such interim actions shall not exceed $2 million.
(f)
(2) A remedy becomes “operational and functional” either one year after construction is complete, or when the remedy is determined concurrently by EPA and the state to be functioning properly and is performing as designed, whichever is earlier. EPA may grant extensions to the one-year period, as appropriate.
(3) For Fund-financed remedial actions involving treatment or other measures to restore ground- or surface-water quality to a level that assures protection of human health and the environment, the operation of such treatment or other measures for a period of up to 10 years after the remedy becomes operational and functional will be considered part of the remedial action. Activities required to maintain the effectiveness of such treatment or measures following the 10-year period, or after remedial action is complete, whichever is earlier, shall be considered O&M. For the purposes of federal funding provided under CERCLA section 104(c)(6), a restoration activity will be considered administratively “complete” when:
(i) Measures restore ground- or surface-water quality to a level that assures protection of human health and the environment;
(ii) Measures restore ground or surface water to such a point that reductions in contaminant concentrations are no longer significant; or
(iii) Ten years have elapsed, whichever is earliest.
(4) The following shall not be deemed to constitute treatment or other measures to restore contaminated ground or surface water under § 300.435(f)(3):
(i) Source control maintenance measures; and
(ii) Ground- or surface-water measures initiated for the primary purpose of providing a drinking-water supply, not for the purpose of restoring ground water.
(a)
(2) In cases of emergency removal actions under CERCLA, emergency actions taken during remedial actions, or response actions under section 311 of the Clean Water Act where the release poses an immediate and significant threat to human health and the environment, the On-Scene Coordinator (OSC) may determine that it is necessary to transfer CERCLA waste off-site without following the requirements of this section.
(3) This section applies to CERCLA wastes from cleanup actions based on CERCLA decision documents signed or consent decrees lodged after October 17, 1986 (“post-SARA CERCLA wastes”) as well as those based on CERCLA decision documents signed and consent decrees lodged prior to October 17, 1986 (“pre-SARA CERCLA wastes”). Pre-SARA and post-SARA CERCLA wastes are subject to the same acceptability criteria in § 300.440(b)(1) and (2).
(4) EPA (usually the EPA Regional Office) will determine the acceptability under this section of any facility selected for the treatment, storage, or disposal of CERCLA waste. EPA will determine if there are relevant releases or relevant violations at a facility prior to the facility's initial receipt of CERCLA waste. A facility which has previously been evaluated and found acceptable under this rule (or the preceding policy) is acceptable until the EPA Regional Office notifies the facility otherwise pursuant to § 300.440(d).
(5) Off-site transfers of those laboratory samples and treatability study CERCLA wastes from CERCLA sites set out in paragraphs (a)(5)(i) through (iii) of this section, are not subject to
(i) Samples of CERCLA wastes sent to a laboratory for characterization;
(ii) RCRA hazardous wastes that are being transferred from a CERCLA site for treatability studies and that meet the requirements for an exemption for RCRA under 40 CFR 261.4(e); and
(iii) Non-RCRA wastes that are being transferred from a CERCLA site for treatability studies and that are below the quantity threshold established at 40 CFR 261.4(e)(2).
(b)
(A) For treatment to standards specified in 40 CFR part 268, subpart D, including any pre-treatment or storage units used prior to treatment;
(B) For treatment to substantially reduce its mobility, toxicity or persistence in the absence of a defined treatment standard, including any pre-treatment or storage units used prior to treatment; or
(C) For storage or ultimate disposal of CERCLA waste not treated to the previous criteria at the same facility.
(ii) Relevant violations include significant deviations from regulations, compliance order provisions, or permit conditions designed to: ensure that CERCLA waste is destined for and delivered to authorized facilities; prevent releases of hazardous waste, hazardous constituents, or hazardous substances to the environment; ensure early detection of such releases; or compel corrective action for releases. Criminal violations which result in indictment are also relevant violations. In addition, violations of the following requirements may be considered relevant:
(A) Applicable subsections of sections 3004 and 3005 of RCRA or, where applicable, other Federal laws (such as the Toxic Substances Control Act and subtitle D of RCRA);
(B) Applicable sections of State environmental laws; and
(C) In addition, land disposal units at RCRA subtitle C facilities receiving RCRA hazardous waste from response actions authorized or funded under CERCLA must be in compliance with RCRA section 3004(o) minimum technology requirements. Exceptions may be made only if the unit has been granted a waiver from these requirements under 40 CFR 264.301.
(2)
(A)
(B) Releases permitted under Federal programs or under Federal programs delegated to the States (Federally permitted releases are defined in § 300.5), except to the extent that such releases are found to pose a threat to human health and the environment; or
(C) Releases to the air that do not exceed standards promulgated pursuant to RCRA section 3004(n), or absent such standards, or where such standards do not apply, releases to the air that do not present a threat to human health or the environment.
(ii) Releases from units at a facility designated for off-site transfer of CERCLA waste must be addressed as follows:
(A)
(B)
(C)
(D)
(iii) Releases are considered to be “controlled” for the purpose of this section as provided in § 300.440 (f)(3)(iv) and (f)(3)(v). A release is not considered “controlled” for the purpose of this section during the pendency of administrative or judicial challenges to corrective action requirements, unless the facility has made the requisite showing under § 300.440(e).
(c)
(2) If a State finds that releases are occurring at a facility regulated under State law or a Federal program for which the State is authorized, EPA will determine, after consulting with the State as appropriate, if the release is relevant under the rule and if so, issue an initial determination of unacceptability.
(3) EPA may also issue initial determinations of unacceptability based on its own findings. EPA can undertake any inspections, data collection and/or assessments necessary. EPA will then notify with the State about the results and issue a determination notice if a relevant violation or release is found.
(d)
(2) The notice shall generally: state that based on available information from a RCRA Facility Assessment (RFA), inspection, or other data sources, the facility has been found not to meet the requirements of § 300.440; cite the specific acts, omissions, or conditions which form the basis of these findings; and inform the owner/operator of the procedural recourse available under this regulation.
(3) A facility which was previously evaluated and found acceptable under this rule (or the preceding policy) may continue to receive CERCLA waste for 60 calendar days after the date of issuance of the notice, unless otherwise determined in accordance with paragraphs (d)(8) or (d)(9) of this section.
(4) If the owner or operator of the facility in question submits a written request for an informal conference with the EPA Regional Office within 10 calendar days from the issuance of the notice, the EPA Regional Office shall provide the opportunity for such conference no later than 30 calendar days after the date of the notice, if possible,
(5) If the owner or operator neither requests an informal conference nor submits written comments, the facility becomes unacceptable to receive CERCLA waste on the 60th day after the notice is issued (or on such other date designated under paragraph (d)(9) of this section). The facility will remain unacceptable until such time as the EPA Regional Office notifies the owner or operator otherwise.
(6) If an informal conference is held or written comments are received, the EPA Region shall decide whether or not the information provided is sufficient to show that the facility is operating in physical compliance with respect to the relevant violations cited in the initial notice of unacceptability, and that all relevant releases have been eliminated or controlled, as required in paragraph (b)(2) of this section, such that a determination of acceptability would be appropriate. EPA will notify the owner/operator in writing whether or not the information provided is sufficient to support a determination of acceptability. Unless EPA determines that information provided by the owner/operator and the State is sufficient to support a determination of acceptability, the facility becomes unacceptable on the 60th calendar day after issuance of the original notice of unacceptability (or other date established pursuant to paragraphs (d)(8) or (d)(9) of this section).
(7) Within 10 days of hearing from the EPA Regional Office after the informal conference or the submittal of written comments, the owner/operator or the State may request a reconsideration of the unacceptability determination by the EPA Regional Administrator (RA). Reconsideration may be by review of the record, by conference, or by other means deemed appropriate by the Regional Administrator; reconsideration does not automatically stay the determination beyond the 60-day period. The owner/operator will receive notice in writing of the decision of the RA.
(8) The EPA Regional Administrator may decide to extend the 60-day period if more time is required to review a submission. The facility owner/operator shall be notified in writing if the Regional Administrator extends the 60 days.
(9) The EPA Regional Office may decide that a facility's unacceptability is immediately effective (or effective in less than 60 days) in extraordinary situations such as, but not limited to, emergencies at the facility or egregious violations. The EPA Region shall notify the facility owner/operator of the date of unacceptability, and may modify timeframes for comments and other procedures accordingly.
(e)
(1) It satisfies the EPA Regional Office that adequate interim corrective action measures will continue at the facility; or
(2) It demonstrates to the EPA Regional Office the absence of a need to take corrective action during the short-term, interim period.
(f)
(1)
(2)
(3)
(i) All releases from receiving units at RCRA subtitle C facilities have been eliminated and prior contamination from such releases is controlled by a corrective action program approved under subtitle C of RCRA;
(ii) All releases from other units at RCRA subtitle C land disposal facilities are controlled by a corrective action program approved under subtitle C of RCRA;
(iii) All releases from other units at RCRA subtitle C treatment and storage facilities do not pose a significant threat to human health or the environment, or are controlled by a corrective action program approved under subtitle C of RCRA.
(iv) A RCRA subtitle C corrective action program may be incorporated into a permit, order, or decree, including the following: a corrective action order under RCRA section 3008(h), section 7003 or section 3013, a RCRA permit under 40 CFR 264.100 or 264.101, or a permit under an equivalent authority in a State authorized for corrective action under RCRA section 3004(u). Releases will be deemed controlled upon issuance of the order, permit, or decree which initiates and requires completion of one or more of the following: a RCRA Facility Investigation, a RCRA Corrective Measures Study, and/or Corrective Measures Implementation. The release remains controlled as long as the facility is in compliance with the order, permit, or decree, and enters into subsequent agreements for implementation of additional corrective action measures when necessary, except during periods of administrative or judicial challenges, when the facility must make a demonstration under § 300.440(e) in order to remain acceptable.
(v) Facilities with releases regulated under other applicable Federal laws, or State laws under a Federally-delegated program may regain acceptability under this section if the releases are deemed by the EPA Regional Office not to pose a threat to human health or the environment, or if the facility enters into an enforceable agreement under those laws to conduct corrective action activities to control releases. Releases will be deemed controlled upon the issuance of an order, permit, or decree which initiates and requires one or more of the following: a facility investigation, a corrective action study, and/or corrective measures implementation. The release remains controlled as long as the facility is in compliance with the order, permit, or decree, and enters into subsequent agreements for implementation of additional corrective measures when necessary, except during periods of administrative or judicial challenges, when the facility must make a demonstration under § 300.440(e) in order to remain acceptable.
(4) Prior to the issuance of a determination that a facility has returned to acceptability, the EPA Region shall notify the State in which the facility is located, and provide an opportunity for the State to discuss the facility's acceptability status with EPA.
(5) An unacceptable facility may be reconsidered for acceptability whenever the EPA Regional Office finds that the facility fulfills the criteria stated in § 300.440(b). Upon such a finding, the EPA Regional Office shall notify the facility and the State in writing.
(a) EPA shall ensure meaningful and substantial state involvement in hazardous substance response as specified in this subpart. EPA shall provide an opportunity for state participation in removal, pre-remedial, remedial, and enforcement response activities. EPA shall encourage states to enter into an EPA/state Superfund Memorandum of Agreement (SMOA) under § 300.505 to increase state involvement and strengthen the EPA/state partnership.
(b) EPA shall encourage states to participate in Fund-financed response in two ways. Pursuant to § 300.515(a), states may either assume the lead through a cooperative agreement for the response action or may be the support agency in EPA-lead remedial response. Section 300.515 sets forth requirements for state involvement in EPA-lead remedial and enforcement response and also addresses comparable requirements for EPA involvement in state-lead remedial and enforcement response. Section 300.520 specifies requirements for state involvement in EPA-lead enforcement negotiations. Section 300.525 specifies requirements for state involvement in removal actions. In addition to the requirements set forth in this subpart, 40 CFR part 35, subpart O, “Cooperative Agreements and Superfund State Contracts for Superfund Response Actions,” contains further requirements for state participation during response.
(a) The SMOA may establish the nature and extent of EPA and state interaction during EPA-lead and state-lead response (Indian tribes meeting the requirements of § 300.515(b) may be treated as states for purposes of this section). EPA shall enter into SMOA discussions if requested by a state. The following may be addressed in a SMOA:
(1) The EPA/state or Indian tribe relationship for removal, pre-remedial, remedial, and enforcement response, including a description of the roles and the responsibilities of each.
(2) The general requirements for EPA oversight. Oversight requirements may be more specifically defined in cooperative agreements.
(3) The general nature of lead and support agency interaction regarding the review of key documents and/or decision points in removal, pre-remedial, remedial, and enforcement response. The requirements for EPA and state review of each other's key documents when each is serving as the support agency shall be equivalent to the extent practicable. Review times agreed to in the SMOA must also be documented in site-specific cooperative agreements or Superfund state contracts in order to be binding.
(4) Procedures for modification of the SMOA (e.g., if EPA and a state agree that the lead and support agency roles and responsibilities have changed, or if modifications are required to achieve desired goals).
(b) The SMOA and any modifications thereto shall be executed by the EPA Regional Administrator and the head of the state agency designated as lead agency for state implementation of CERCLA.
(c) Site-specific agreements entered into pursuant to section 104(d)(1) of CERCLA shall be developed in accordance with 40 CFR part 35, subpart O. The SMOA shall not supersede such agreements.
(d)(1) EPA and the state shall consult annually to determine priorities and make lead and support agency designations for removal, pre-remedial, remedial, and enforcement response to be conducted during the next fiscal year and to discuss future priorities and long-term requirements for response. These consultations shall include the exchange of information on both Fund- and non-Fund-financed response activities. The SMOA may describe the timeframe and process for the EPA/state consultation.
(2) The following activities shall be discussed in the EPA/state consultations established in the SMOA, or otherwise initiated and documented in writing in the absence of a SMOA, on a site-specific basis with EPA and the
(i) Pre-remedial response actions, including preliminary assessments and site inspections;
(ii) Hazard Ranking System scoring and NPL listing and deletion activities;
(iii) Remedial phase activities, including remedial investigation/feasibility study, identification of potential applicable or relevant and appropriate requirements (ARARs) under federal and state environmental laws and, as appropriate, other advisories, criteria, or guidance to be considered (TBCs), proposed plan, ROD, remedial design, remedial action, and operation and maintenance;
(iv) Potentially responsible party (PRP) searches, notices to PRPs, response to information requests, PRP negotiations, oversight of PRPs, other enforcement actions pursuant to state law, and activities where the state provides support to EPA;
(v) Compilation and maintenance of the administrative record for selection of a response action as required by subpart I of this part;
(vi) Related site support activities;
(vii) State ability to share in the cost and timing of payments; and
(viii) General CERCLA implementation activities.
(3) If a state is designated as the lead agency for a non-Fund-financed action at an NPL site, the SMOA shall be supplemented by site-specific enforcement agreements between EPA and the state which specify schedules and EPA involvement.
(4) In the absence of a SMOA, EPA and the state shall comply with the requirements in § 300.515(h). If the SMOA does not address all of the requirements specified in § 300.515(h), EPA and the state shall comply with any unaddressed requirements in that section.
(a) A Fund-financed remedial action undertaken pursuant to CERCLA section 104(a) cannot proceed unless a state provides its applicable required assurances. The assurances must be provided by the state prior to the initiation of remedial action pursuant to a Superfund state contract for EPA-lead (or political subdivision-lead) remedial action or pursuant to a cooperative agreement for a state-lead remedial action. The SMOA may not be used for this purpose. Federally recognized Indian tribes are not required to provide CERCLA section 104(c)(3) assurances for Fund-financed response actions. Further requirements pertaining to state, political subdivision, and federally recognized Indian tribe involvement in CERCLA response are found in 40 CFR part 35, subpart O.
(b)(1) The state is not required to share in the cost of state- or EPA-lead Fund-financed removal actions (including remedial planning activities associated with remedial actions) conducted pursuant to CERCLA section 104 unless the facility was operated by the state or a political subdivision thereof at the time of disposal of hazardous substances therein and a remedial action is ultimately undertaken at the site. Such remedial planning activities include, but are not limited to, remedial investigations (RIs), feasibility studies (FSs), and remedial design (RD). States shall be required to share 50 percent, or greater, in the cost of all Fund-financed response actions if the facility was publicly operated at the time of the disposal of hazardous substances. For other facilities, except federal facilities, the state shall be required to share 10 percent of the cost of the remedial action.
(2) CERCLA section 104(c)(5) provides that EPA shall grant a state credit for reasonable, documented, direct, out-of-pocket, non-federal expenditures subject to the limitations specified in CERCLA section 104(c)(5). For a state to apply credit toward its cost share, it must enter into a cooperative agreement or Superfund state contract. The state must submit as soon as possible, but no later than at the time CERCLA section 104 assurances are provided for a remedial action, its accounting of eligible credit expenditures for EPA verification. Additional credit requirements are contained in 40 CFR part 35, subpart O.
(3) Credit may be applied to a state's future cost share requirements at NPL sites for response expenditures or obligations incurred by the state or a political subdivision from January 1, 1978
(4) Credit that exceeds the required cost share at the site for which the credit is granted may be transferred to another site to offset a state's required remedial action cost share.
(c)(1) Prior to a Fund-financed remedial action, the state must also provide its assurance in accordance with CERCLA section 104(c)(3)(A) to assume responsibility for operation and maintenance of implemented remedial actions for the expected life of such actions. In addition, when appropriate, as part of the O&M assurance, the state must assure that any institutional controls implemented as part of the remedial action at a site are in place, reliable, and will remain in place after the initiation of O&M. The state and EPA shall consult on a plan for operation and maintenance prior to the initiation of a remedial action.
(2) After a joint EPA/State inspection of the implemented Fund-financed remedial action under § 300.515(g), EPA may share, for any extension period established in § 300.435(f)(2), in the cost of the operation of the remedy to ensure that the remedy is operational and functional. In the case of restoration of ground or surface water, EPA shall share in the cost of the State's operation of ground- or surface-water restoration remedial actions as specified in § 300.435(f)(3).
(d) In accordance with CERCLA sections 104 (c)(3)(B) and 121(d)(3), if the remedial action requires off-site storage, destruction, treatment, or disposal, the state must provide its assurance before the remedial action begins on the availability of a hazardous waste disposal facility that is in compliance with CERCLA section 121(d)(3) and is acceptable to EPA.
(e)(1) In accordance with CERCLA section 104(c)(9), EPA shall not provide any remedial action pursuant to CERCLA section 104 until the state in which the release occurs enters into a cooperative agreement or Superfund state contract with EPA providing assurances deemed adequate by EPA that the state will assure the availability of hazardous waste treatment or disposal facilities which:
(i) Have adequate capacity for the destruction, treatment, or secure disposition of all hazardous wastes that are reasonably expected to be generated within the state during the 20-year period following the date of such cooperative agreement or Superfund state contract and to be destroyed, treated, or disposed;
(ii) Are within the state, or outside the state in accordance with an interstate agreement or regional agreement or authority;
(iii) Are acceptable to EPA; and
(iv) Are in compliance with the requirements of Subtitle C of the Solid Waste Disposal Act.
(2) This rule does not address whether or not Indian tribes are states for purposes of this paragraph (e).
(f) EPA may determine that an interest in real property must be acquired in order to conduct a response action. However, as provided in CERCLA section 104(j)(2), EPA may acquire an interest in real estate in order to conduct a remedial action only if the State in which the interest to be acquired is located provides assurances, through a contract, cooperative agreement or otherwise, that the State will accept transfer of the interest upon completion of the remedial action. For purposes of this paragraph, “completion of the remedial action” is the point at which operation and maintenance (O&M) measures would be initiated pursuant to § 300.435(f). The State may accept a transfer of interest at an earlier point in time if agreed upon in writing by the State and EPA. Indian tribe assurances are to be provided as set out at 40 CFR part 35, subpart O, § 35.6110(b)(2).
(a)
(2) For EPA-lead Fund-financed remedial planning activities, including, but not limited to, remedial investigations, feasibility studies, and remedial designs, the state agency acceptance of the support agency role during an EPA-lead response shall be documented in a letter, SMOA, or cooperative agreement. Superfund state contracts are unnecessary for this purpose.
(3) Cooperative agreements and Superfund state contracts are only appropriate for non-Fund-financed response actions if a state intends to seek credit for remedial action expenses under § 300.510.
(b)
(1) Be federally recognized; and
(2) Have a tribal governing body that is currently performing governmental functions to promote the health, safety, and welfare of the affected population or to protect the environment within a defined geographic area; and
(3) Have jurisdiction over a site at which Fund-financed response, including pre-remedial activities, is contemplated.
(c)
(1) EPA shall consult with states as appropriate on the information to be used in developing HRS scores for releases.
(2) EPA shall, to the extent feasible, provide the state 30 working days to review releases which were scored by EPA and which will be considered for placement on the National Priorities List (NPL).
(3) EPA shall provide the state 30 working days to review and concur on the Notice of Intent to Delete a release from the NPL. Section 300.425 describes the EPA/state consultation and concurrence process for deleting releases from the NPL.
(d)
(1) In accordance with §§ 300.400(g) and 300.430, the lead and support agencies shall identify their respective potential ARARs and communicate them to each other in a timely manner, i.e., no later than the early stages of the comparative analysis described in § 300.430(e)(9), such that sufficient time is available for the lead agency to consider and incorporate all potential ARARs without inordinate delays and duplication of effort. The lead and support agencies may also identify TBCs and communicate them in a timely manner.
(2) When a state and EPA have entered into a SMOA, the SMOA may specify a consultation process which requires the lead agency to solicit potential ARARs at specified points in the remedial planning and remedy selection processes. At a minimum, the SMOA shall include the points specified in § 300.515(h)(2). The SMOA shall specify timeframes for support agency response to lead agency requests to ensure that potential ARARs are identified and communicated in a timely manner. Such timeframes must also be documented in site-specific agreements. The SMOA may also discuss identification and communication of TBCs.
(3) If EPA in its statement of a proposed plan intends to waive any state-identified ARARs, or does not agree with the state that a certain state standard is an ARAR, it shall formally notify the state when it submits the
(4) EPA shall respond to state comments on waivers from or disagreements about state ARARs, as well as the preferred alternative when making the RI/FS report and proposed plan available for public comment.
(e)
(2)(i) EPA and the state shall identify, at least annually, sites for which RODs will be prepared during the next fiscal year, in accordance with § 300.515(h)(1). For all EPA-lead sites, EPA shall prepare the ROD and provide the state an opportunity to concur with the recommended remedy. For Fund-financed state-lead sites, EPA and the state shall designate sites, in a site-specific agreement, for which the state shall prepare the ROD and seek EPA's concurrence and adoption of the remedy specified therein, and sites for which EPA shall prepare the ROD and seek the state's concurrence. EPA and the state may designate sites for which the state shall prepare the ROD for non-Fund-financed state-lead enforcement response actions (
(ii) State concurrence on a ROD is not a prerequisite to EPA's selecting a remedy, i.e., signing a ROD, nor is EPA's concurrence a prerequisite to a state's selecting a remedy at a non-Fund-financed state-lead enforcement site under state law. Unless EPA's Assistant Administrator for Solid Waste and Emergency Response or Regional Administrator concurs in writing with a state-prepared ROD, EPA shall not be deemed to have approved the state decision. A state may not proceed with a Fund-financed response action unless EPA has first concurred in and adopted the ROD. Section 300.510(a) specifies limitations on EPA's proceeding with a remedial action without state assurances.
(iii) The lead agency shall provide the support agency with a copy of the signed ROD for remedial actions to be conducted pursuant to CERCLA.
(iv) On state-lead sites identified for EPA concurrence, the state generally shall be expected to maintain its lead agency status through the completion of the remedial action.
(f)
(i) If EPA finds that the proposed change or expansion is necessary and appropriate to the EPA-selected remedial action, the remedy may be modified (consistent with § 300.435(c)(2)) and any additional costs paid as part of the remedial action.
(ii) If EPA finds that the proposed change or expansion is not necessary to the selected remedial action, but would not conflict or be inconsistent with the EPA-selected remedy, EPA may agree to integrate the proposed change or expansion into the planned CERCLA remedial work if:
(A) The state agrees to fund the entire additional cost associated with the change or expansion; and
(B) The state agrees to assume the lead for supervising the state-funded component of the remedy or, if EPA determines that the state-funded component cannot be conducted as a separate phase or activity, for supervising the remedial design and construction of the entire remedy.
(2) Where a state does not concur in a remedial action secured by EPA under CERCLA section 106, and the state desires to have the remedial action conform to an ARAR that has been waived under § 300.430(f)(1)(ii)(C), a state may seek to have that remedial action so conform, in accordance with the procedures set out in CERCLA section 121(f)(2) .
(g)
(h)
(1)
(2)
(3)
(i)
(a) EPA shall notify states of response action negotiations to be conducted by EPA with potentially responsible parties during each fiscal year.
(b) The state must notify EPA of such negotiations in which it intends to participate.
(c) The state is not foreclosed from signing a consent decree if it does not participate substantially in the negotiations.
(a) States may undertake Fund-financed removal actions pursuant to a cooperative agreement with EPA. State-lead removal actions taken pursuant to cooperative agreements must be conducted in accordance with § 300.415 on removal actions, and 40 CFR part 35, subpart O.
(b) States are not required under section 104(c)(3) of CERCLA to share in the cost of a Fund-financed removal action, unless the removal is conducted at an NPL site that was operated by a state or political subdivision at the time of disposal of hazardous substances therein and a Fund-financed remedial action is ultimately undertaken at the site. In this situation, states are required to share, 50 percent or greater, in the cost of all removal (including remedial planning) and remedial action costs at the time of the remedial action.
(c) States are encouraged to provide for post-removal site control as discussed in § 300.415(k) for all Fund-financed removal actions.
(d) States shall be responsible for identifying potential state ARARs for all Fund-financed removal actions and for providing such ARARs to EPA in a timely manner for all EPA-lead removal actions.
(e) EPA shall consult with a state on all removal actions to be conducted in that state.
(a) The President is required to designate in the NCP those federal officials who are to act on behalf of the public as trustees for natural resources. Federal officials so designated will act pursuant to section 107(f) of CERCLA, section 311(f)(5) of the CWA, and section 1006 of the OPA. Natural resources means land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled (hereinafter referred to as “managed or controlled”) by the United States (including the resources of the exclusive economic zone).
(b) The following individuals shall be the designated trustee(s) for general categories of natural resources, including their supporting ecosystems. They are authorized to act pursuant to section 107(f) of CERCLA, section 311(f)(5) of the CWA, or section 1006 of the OPA when there is injury to, destruction of, loss of, or threat to natural resources, including their supporting ecosystems, as a result of a release of a hazardous substance or a discharge of oil. Notwithstanding the other designations in this section, the Secretaries of Commerce and the Interior shall act as trustees of those resources subject to their respective management or control.
(1)
(2)
(3)
(4)
State trustees shall act on behalf of the public as trustees for natural resources, including their supporting ecosystems, within the boundary of a state or belonging to, managed by, controlled by, or appertaining to such state. For the purposes of subpart G of this part, the definition of the term
The tribal chairmen (or heads of the governing bodies) of Indian tribes, as defined in § 300.5, or a person designated by the tribal officials, shall act on behalf of the Indian tribes as trustees for the natural resources, including their supporting ecosystems, belonging to, managed by, controlled by, or appertaining to such Indian tribe, or held in trust for the benefit of such Indian tribe, or belonging to a member of such Indian tribe, if such resources are subject to a trust restriction on alienation. When the tribal chairman or head of the tribal governing body designates another person as trustee, the tribal chairman or head of the tribal governing body shall notify the President of such designation. Such officials are authorized to act when there is injury to, destruction of, loss of, or threat to natural resources, including their supporting ecosystems as a result of a release of a hazardous substance.
Pursuant to section 1006 of the OPA, foreign trustees shall act on behalf of the head of a foreign government as trustees for natural resources belonging to, managed by, controlled by, or appertaining to such foreign government.
(a) Where there are multiple trustees, because of coexisting or contiguous natural resources or concurrent jurisdictions, they should coordinate and cooperate in carrying out these responsibilities.
(b) Trustees are responsible for designating to the RRTs and the Area Committees, for inclusion in the RCP and the ACP, appropriate contacts to receive notifications from the OSCs/RPMs of discharges or releases.
(c)(1) Upon notification or discovery of injury to, destruction of, loss of, or threat to natural resources, trustees may, pursuant to section 107(f) of CERCLA, or section 311(f)(5) of the CWA, take the following or other actions as appropriate:
(i) Conduct a preliminary survey of the area affected by the discharge or release to determine if trust resources
(ii) Cooperate with the OSC/RPM in coordinating assessments, investigations, and planning;
(iii) Carry out damage assessments; or
(iv) Devise and carry out a plan for restoration, rehabilitation, replacement, or acquisition of equivalent natural resources. In assessing damages to natural resources, the federal, state, and Indian tribe trustees have the option of following the procedures for natural resource damage assessments located at 43 CFR part 11.
(2) Upon notification or discovery of injury to, destruction of, loss of, or loss of use of, natural resources, or the potential for such, resulting from a discharge of oil occurring after August 18, 1990, the trustees, pursuant to section 1006 of the OPA, are to take the following actions:
(i) In accordance with OPA section 1006(c), determine the need for assessment of natural resource damages, collect data necessary for a potential damage assessment, and, where appropriate, assess damages to natural resources under their trusteeship; and
(ii) As appropriate, and subject to the public participation requirements of OPA section 1006(c), develop and implement a plan for the restoration, rehabilitation, replacement, or acquisition of the equivalent, of the natural resources under their trusteeship;
(3)(i) The trustees, consistent with procedures specified in the Fish and Wildlife and Sensitive Environments Plan Annex to the Area Contingency Plan, shall provide timely advice on recommended actions concerning trustee resources that are potentially affected by a discharge of oil. This may include providing assistance to the OSC in identifying/recommending pre-approved response techniques and in predesignating shoreline types and areas in ACPs.
(ii) The trustees shall assure, through the lead administrative trustee, that the OSC is informed of their activities regarding natural resource damage assessment that may affect response operations in order to assure coordination and minimize any interference with such operations. The trustees shall assure, through the lead administrative trustee, that all data from the natural resource damage assessment activities that may support more effective operational decisions are provided in a timely manner to the OSC.
(iii) When circumstances permit, the OSC shall share the use of federal response resources (including but not limited to aircraft, vessels, and booms to contain and remove discharged oil) with the trustees, providing trustee activities do not interfere with response actions. The lead administrative trustee facilitates effective and efficient communication between the OSC and the other trustees during response operations and is responsible for applying to the OSC for non-monetary federal response resources on behalf of all trustees. The lead administrative trustee is also responsible for applying to the NPFC for funding for initiation of damage assessment for injuries to natural resources.
(d) The authority of federal trustees includes, but is not limited to the following actions:
(1) Requesting that the Attorney General seek compensation from the responsible parties for the damages assessed and for the costs of an assessment and of restoration planning; and
(2) Participating in negotiations between the United States and potentially responsible parties to obtain PRP-financed or PRP-conducted assessments and restorations for injured resources or protection for threatened resources and to agree to covenants not to sue, where appropriate.
(3) Requiring, in consultation with the lead agency, any person to comply with the requirements of CERCLA section 104(e) regarding information gathering and access.
(4) Initiating damage assessments, as provided in OPA section 6002.
(e) Actions which may be taken by any trustee pursuant to section 107(f) of CERCLA, section 311(f)(5) of the CWA, or section 1006 of the OPA include, but are not limited to, any of the following:
(1) Requesting that an authorized agency issue an administrative order or pursue injunctive relief against the
(2) Requesting that the lead agency remove, or arrange for the removal of, or provide for remedial action with respect to, any oil or hazardous substances from a contaminated medium pursuant to section 104 of CERCLA or section 311 of CWA.
(a)
(b)
(1) Section 107(a), wherein any person may receive a court award of his or her response costs, plus interest, from the party or parties found to be liable;
(2) Section 111(a)(2), wherein a private party, a PRP pursuant to a settlement agreement, or certain foreign entities may file a claim against the Fund for reimbursement of response costs;
(3) Section 106(b), wherein any person who has complied with a section 106(a) order may petition the Fund for reimbursement of reasonable costs, plus interest; and
(4) Section 123, wherein a general purpose unit of local government may apply to the Fund under 40 CFR part 310 for reimbursement of the costs of temporary emergency measures that are necessary to prevent or mitigate injury to human health or the environment associated with a release.
(c)
(2) Responsible parties shall be liable for necessary costs of response actions to releases of hazardous substances incurred by any other person consistent with the NCP.
(3) For the purpose of cost recovery under section 107(a)(4)(B) of CERCLA:
(i) A private party response action will be considered “consistent with the NCP” if the action, when evaluated as a whole, is in substantial compliance with the applicable requirements in paragraphs (5) and (6) of this section, and results in a CERCLA-quality cleanup; and
(ii) Any response action carried out in compliance with the terms of an order issued by EPA pursuant to section 106 of CERCLA, or a consent decree entered into pursuant to section 122 of CERCLA, will be considered “consistent with the NCP.”
(4) Actions under § 300.700(c)(1) will not be considered “inconsistent with the NCP,” and actions under § 300.700(c)(2) will not be considered not “consistent with the NCP,” based on immaterial or insubstantial deviations from the provisions of 40 CFR part 300.
(5) The following provisions of this part are potentially applicable to private party response actions:
(i) Section 300.150 (on worker health and safety);
(ii) Section 300.160 (on documentation and cost recovery);
(iii) Section 300.400(c)(1), (4), (5), and (7) (on determining the need for a Fund-financed action); (e) (on permit requirements) except that the permit waiver does not apply to private party response actions; and (g) (on identification of ARARs) except that applicable requirements of federal or state law may not be waived by a private party;
(iv) Section 300.405(b), (c), and (d) (on reports of releases to the NRC);
(v) Section 300.410 (on removal site evaluation) except paragraphs (f)(5) and (6);
(vi) Section 300.415 (on removal actions) except paragraphs (a)(2), (b)(2)(vii), (b)(5), and (g); and including § 300.415(j) with regard to meeting ARARs where practicable except that private party removal actions must always comply with the requirements of applicable law;
(vii) Section 300.420 (on remedial site evaluation);
(viii) Section 300.430 (on RI/FS and selection of remedy) except paragraph
(ix) Section 300.435 (on RD/RA and operation and maintenance).
(6) Private parties undertaking response actions should provide an opportunity for public comment concerning the selection of the response action based on the provisions set out below, or based on substantially equivalent state and local requirements. The following provisions of this part regarding public participation are potentially applicable to private party response actions, with the exception of administrative record and information repository requirements stated therein:
(i) Section 300.155 (on public information and community relations);
(ii) Section 300.415(n) (on community relations during removal actions);
(iii) Section 300.430(c) (on community relations during RI/FS) except paragraph (c)(5);
(iv) Section 300.430(f)(2), (3), and (6) (on community relations during selection of remedy); and
(v) Section 300.435(c) (on community relations during RD/RA and operation and maintenance).
(7) When selecting the appropriate remedial action, the methods of remedying releases listed in appendix D of this part may also be appropriate to a private party response action.
(8) Except for actions taken pursuant to CERCLA sections 104 or 106 or response actions for which reimbursement from the Fund will be sought, any action to be taken by the lead agency listed in paragraphs (c)(5) through (c)(7) may be taken by the person carrying out the response action.
(d)
(i) Federal government;
(ii) State governments, and their political subdivisions, unless they are potentially responsible parties covered by an order or consent decree pursuant to section 122 of CERCLA; and
(iii) Persons operating under a procurement contract or an assistance agreement with the United States with respect to matters covered by that contract or assistance agreement, unless specifically provided therein.
(2) In order to be reimbursed by the Fund, an eligible person must notify the Administrator of EPA or designee prior to taking a response action and receive prior approval, i.e., “preauthorization,” for such action.
(3) Preauthorization is EPA's prior approval to submit a claim against the Fund for necessary response costs incurred as a result of carrying out the NCP. All applications for preauthorization will be reviewed to determine whether the request should receive priority for funding. EPA, in its discretion, may grant preauthorization of a claim. Preauthorization will be considered only for:
(i) Removal actions pursuant to § 300.415;
(ii) CERCLA section 104(b) activities; and
(iii) Remedial actions at National Priorities List sites pursuant to § 300.435.
(4) To receive EPA's prior approval, the eligible person must:
(i) Demonstrate technical and other capabilities to respond safely and effectively to releases of hazardous substances, pollutants, or contaminants; and
(ii) Establish that the action will be consistent with the NCP in accordance with the elements set forth in paragraphs (c)(5) through (8) of this section.
(5) EPA will grant preauthorization to a claim by a party it determines to be potentially liable under section 107 of CERCLA only in accordance with an order issued pursuant to section 106 of CERCLA, or a settlement with the federal government in accordance with section 122 of CERCLA.
(6) Preauthorization does not establish an enforceable contractual relationship between EPA and the claimant.
(7) Preauthorization represents EPA's commitment that if funds are appropriated for response actions, the
(8) For a claim to be awarded under section 111 of CERCLA, EPA must certify that the costs were necessary and consistent with the preauthorization decision document.
(e)
(f)
(g)
(h)
(a)
(b)
(2) EPA or the U.S. Coast Guard shall compile and maintain the administrative record when it is the lead agency for a federal facility.
(3) If EPA is involved in the selection of the response action at a federal facility on the NPL, the federal agency acting as the lead agency shall provide EPA with a copy of the index of documents included in the administrative record file, the RI/FS workplan, the RI/FS released for public comment, the proposed plan, any public comments received on the RI/FS and proposed plan, and any other documents EPA may request on a case-by-case basis.
(c)
(d)
(1) Remedial actions where the remedial investigation commenced after the promulgation of these regulations; and
(2) Removal actions where the action memorandum is signed after the promulgation of these regulations.
(e) For those response actions not included in paragraph (d) of this section, the lead agency shall comply with this subpart to the extent practicable.
(a) The lead agency shall establish a docket at an office of the lead agency or other central location at which documents included in the administrative record file shall be located and a copy of the documents included in the administrative record file shall also be made available for public inspection at or near the site at issue, except as provided below:
(1) Sampling and testing data, quality control and quality assurance documentation, and chain of custody forms, need not be located at or near the site at issue or at the central location, provided that the index to the administrative record file indicates the location and availability of this information.
(2) Guidance documents not generated specifically for the site at issue need not be located at or near the site at issue, provided that they are maintained at the central location and the index to the administrative record file indicates the location and availability of these guidance documents.
(3) Publicly available technical literature not generated for the site at issue, such as engineering textbooks, articles from technical journals, and toxicological profiles, need not be located at or near the site at issue or at the central location, provided that the literature is listed in the index to the administrative record file or the literature is cited in a document in the record.
(4) Documents included in the confidential portion of the administrative record file shall be located only in the central location.
(5) The administrative record for a removal action where the release or threat of release requires that on-site removal activities be initiated within hours of the lead agency's determination that a removal is appropriate and on-site removal activities cease within 30 days of initiation, need be available for public inspection only at the central location.
(b) Where documents are placed in the central location but not in the file located at or near the site, such documents shall be added to the file located at or near the site upon request, except for documents included in paragraph (a)(4) of this section.
(c) The lead agency may make the administrative record file available to the public in microform.
(a)
(1) Documents containing factual information, data and analysis of the factual information, and data that may form a basis for the selection of a response action. Such documents may include verified sampling data, quality control and quality assurance documentation, chain of custody forms, site inspection reports, preliminary assessment and site evaluation reports, ATSDR health assessments, documents supporting the lead agency's determination of imminent and substantial endangerment, public health evaluations, and technical and engineering evaluations. In addition, for remedial actions, such documents may include approved workplans for the remedial investigation/feasibility study, state documentation of applicable or relevant and appropriate requirements, and the RI/FS;
(2) Guidance documents, technical literature, and site-specific policy memoranda that may form a basis for the selection of the response action. Such documents may include guidance on conducting remedial investigations and feasibility studies, guidance on determining applicable or relevant and appropriate requirements, guidance on risk/exposure assessments, engineering handbooks, articles from technical journals, memoranda on the application of a specific regulation to a site, and memoranda on off-site disposal capacity;
(3) Documents received, published, or made available to the public under § 300.815 for remedial actions, or § 300.820 for removal actions. Such documents may include notice of availability of the administrative record file, community relations plan, proposed plan for remedial action, notices of public comment periods, public comments and information received by the lead agency, and responses to significant comments;
(4) Decision documents. Such documents may include action memoranda and records of decision;
(5) Enforcement orders. Such documents may include administrative orders and consent decrees; and
(6) An index of the documents included in the administrative record file. If documents are customarily grouped together, as with sampling data chain of custody documents, they may be listed as a group in the index to the administrative record file.
(b)
(c)
(d)
(a) The administrative record file for the selection of a remedial action shall be made available for public inspection at the commencement of the remedial investigation phase. At such time, the lead agency shall publish in a major local newspaper of general circulation a notice of the availability of the administrative record file.
(b) The lead agency shall provide a public comment period as specified in § 300.430(f)(3) so that interested persons may submit comments on the selection of the remedial action for inclusion in the administrative record file. The lead agency is encouraged to consider and respond as appropriate to significant comments that were submitted prior to the public comment period. A written response to significant comments submitted during the public comment period shall be included in the administrative record file.
(c) The lead agency shall comply with the public participation procedures required in § 300.430(f)(3) and shall
(d) Documents generated or received after the record of decision is signed shall be added to the administrative record file only as provided in § 300.825.
(a) If, based on the site evaluation, the lead agency determines that a removal action is appropriate and that a planning period of at least six months exists before on-site removal activities must be initiated:
(1) The administrative record file shall be made available for public inspection when the engineering evaluation/cost analysis (EE/CA) is made available for public comment. At such time, the lead agency shall publish in a major local newspaper of general circulation a notice of the availability of the administrative record file.
(2) The lead agency shall provide a public comment period as specified in § 300.415 so that interested persons may submit comments on the selection of the removal action for inclusion in the administrative record file. The lead agency is encouraged to consider and respond, as appropriate, to significant comments that were submitted prior to the public comment period. A written response to significant comments submitted during the public comment period shall be included in the administrative record file.
(3) The lead agency shall comply with the public participation procedures of § 300.415(m) and shall document compliance with § 300.415(m)(3)(i) through (iii) in the administrative record file.
(4) Documents generated or received after the decision document is signed shall be added to the administrative record file only as provided in § 300.825.
(b) For all removal actions not included in paragraph (a) of this section:
(1) Documents included in the administrative record file shall be made available for public inspection no later than 60 days after initiation of on-site removal activity. At such time, the lead agency shall publish in a major local newspaper of general circulation a notice of availability of the administrative record file.
(2) The lead agency shall, as appropriate, provide a public comment period of not less than 30 days beginning at the time the administrative record file is made available to the public. The lead agency is encouraged to consider and respond, as appropriate, to significant comments that were submitted prior to the public comment period. A written response to significant comments submitted during the public comment period shall be included in the administrative record file.
(3) Documents generated or received after the decision document is signed shall be added to the administrative record file only as provided in § 300.825.
(a) The lead agency may add documents to the administrative record file after the decision document selecting the response action has been signed if:
(1) The documents concern a portion of a response action decision that the decision document does not address or reserves to be decided at a later date; or
(2) An explanation of significant differences required by § 300.435(c), or an amended decision document is issued, in which case, the explanation of significant differences or amended decision document and all documents that form the basis for the decision to modify the response action shall be added to the administrative record file.
(b) The lead agency may hold additional public comment periods or extend the time for the submission of public comment after a decision document has been signed on any issues concerning selection of the response action. Such comment shall be limited to the issues for which the lead agency has requested additional comment. All additional comments submitted during such comment periods that are responsive to the request, and any response to these comments, along with documents supporting the request and any final decision with respect to the issue, shall be placed in the administrative record file.
(c) The lead agency is required to consider comments submitted by interested persons after the close of the public comment period only to the extent
(a) Section 311(d)(2)(G) of the CWA requires that EPA prepare a schedule of dispersants, other chemicals, and other spill mitigating devices and substances, if any, that may be used in carrying out the NCP. This subpart makes provisions for such a schedule.
(b) This subpart applies to the navigable waters of the United States and adjoining shorelines, the waters of the contiguous zone, and the high seas beyond the contiguous zone in connection with activities under the Outer Continental Shelf Lands Act, activities under the Deepwater Port Act of 1974, or activities that may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States, including resources under the Magnuson Fishery Conservation and Management Act of 1976.
(c) This subpart applies to the use of any chemical agents or other additives as defined in subpart A of this part that may be used to remove or control oil discharges.
(a)
(2) Products may be added to the NCP Product Schedule by the process specified in § 300.920.
(b)
(a) RRTs and Area Committees shall address, as part of their planning activities, the desirability of using appropriate dispersants, surface washing agents, surface collecting agents, bioremediation agents, or miscellaneous oil spill control agents listed on the NCP Product Schedule, and the desirability of using appropriate burning agents. RCPs and ACPs shall, as appropriate, include applicable preauthorization plans and address the specific contexts in which such products should and should not be used. In meeting the provisions of this paragraph, preauthorization plans may address factors such as the potential sources and types of oil that might be spilled, the existence and location of environmentally sensitive resources that might be impacted by spilled oil, available product and storage locations, available equipment and adequately trained operators, and the available means to monitor product application and effectiveness. The RRT representatives from EPA and the states with jurisdiction over the waters of the area to which a preauthorization plan applies and the DOC and DOI natural resource trustees shall review and either approve, disapprove, or approve with modification the preauthorization plans developed by Area Committees, as appropriate. Approved preauthorization plans shall be included in the appropriate RCPs and ACPs. If the RRT representatives from EPA and the states with jurisdiction over the waters of the area to which a preauthorization plan applies and the DOC and DOI natural resource trustees approve in advance the use of certain products under specified circumstances as described in the preauthorization plan, the OSC may authorize the use of the products without obtaining the
(b) For spill situations that are not addressed by the preauthorization plans developed pursuant to paragraph (a) of this section, the OSC, with the concurrence of the EPA representative to the RRT and, as appropriate, the concurrence of the RRT representatives from the states with jurisdiction over the navigable waters threatened by the release or discharge, and in consultation with the DOC and DOI natural resource trustees, when practicable, may authorize the use of dispersants, surface washing agents, surface collecting agents, bioremediation agents, or miscellaneous oil spill control agents on the oil discharge, provided that the products are listed on the NCP Product Schedule.
(c) The OSC, with the concurrence of the EPA representative to the RRT and, as appropriate, the concurrence of the RRT representatives from the states with jurisdiction over the navigable waters threatened by the release or discharge, and in consultation with the DOC and DOI natural resource trustees, when practicable, may authorize the use of burning agents on a case-by-case basis.
(d) The OSC may authorize the use of any dispersant, surface washing agent, surface collecting agent, other chemical agent, burning agent, bioremediation agent, or miscellaneous oil spill control agent, including products not listed on the NCP Product Schedule, without obtaining the concurrence of the EPA representative to the RRT and, as appropriate, the RRT representatives from the states with jurisdiction over the navigable waters threatened by the release or discharge, when, in the judgment of the OSC, the use of the product is necessary to prevent or substantially reduce a hazard to human life. Whenever the OSC authorizes the use of a product pursuant to this paragraph, the OSC is to inform the EPA RRT representative and, as appropriate, the RRT representatives from the affected states and, when practicable, the DOC/DOI natural resources trustees of the use of a product, including products not on the Schedule, as soon as possible. Once the threat to human life has subsided, the continued use of a product shall be in accordance with paragraphs (a), (b), and (c) of this section.
(e) Sinking agents shall not be authorized for application to oil discharges.
(f) When developing preauthorization plans, RRTs may require the performance of supplementary toxicity and effectiveness testing of products, in addition to the test methods specified in § 300.915 and described in appendix C to part 300, due to existing site-specific or area-specific concerns.
(a)
(2) Name, address, and telephone number of the manufacturer, importer, or vendor.
(3) Name, address, and telephone number of primary distributors or sales outlets.
(4) Special handling and worker precautions for storage and field application. Maximum and minimum storage temperatures, to include optimum ranges as well as temperatures that will cause phase separations, chemical changes, or other alterations to the effectiveness of the product.
(5) Shelf life.
(6) Recommended application procedures, concentrations, and conditions for use depending upon water salinity, water temperature, types and ages of the pollutants, and any other application restrictions.
(7) Effectiveness. Use the Swirling Flask effectiveness test methods described in appendix C to part 300. Manufacturers shall submit test results and supporting data, along with a certification signed by responsible corporate officials of the manufacturer and laboratory stating that the test was conducted on a representative product sample, the testing was conducted using generally accepted laboratory practices, and they believe the results to be accurate. A dispersant must attain an effectiveness value of 45 percent or greater to be added to the NCP Product Schedule. Manufacturers are encouraged to provide data on product performance under conditions other than those captured by these tests.
(8)
(9) The following data requirements incorporate by reference standards from the 1991 or 1992 Annual Books of ASTM Standards. American Society for Testing and Materials, 1916 Race Street, Philadelphia, Pennsylvania 19103. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
(i) Flash Point—Select appropriate method from the following:
(A) ASTM—D 56-87, “Standard Test Method for Flash Point by Tag Closed Tester;”
(B) ASTM—D 92-90, “Standard Test Method for Flash and Fire Points by Cleveland Open Cup;”
(C) ASTM—D 93-90, “Standard Test Methods for Flash Point by Pensky-Martens Closed Tester;”
(D) ASTM—D 1310-86, “Standard Test Method for Flash Point and Fire Point of Liquids by Tag Open-Cup Apparatus;” or
(E) ASTM—D 3278-89, “Standard Test Methods for Flash Point of Liquids by Setaflash Closed-Cup Apparatus.”
(ii) Pour Point—Use ASTM—D 97-87, “Standard Test Method for Pour Point of Petroleum Oils.”
(iii) Viscosity—Use ASTM—D 445-88, “Standard Test Method for Kinematic Viscosity of Transparent and Opaque Liquids (and the Calculation of Dynamic Viscosity).”
(iv) Specific Gravity—Use ASTM—D 1298-85(90), “Standard Test Method for Density, Relative Density (Specific Gravity), or API Gravity of Crude Petroleum and Liquid Petroleum Products by Hydrometer Method.”
(v) pH—Use ASTM—D 1293-84(90), “Standard Test Methods for pH of Water.”
(10) Dispersing Agent Components. Itemize by chemical name and percentage by weight each component of the total formulation. The percentages will include maximum, minimum, and average weights in order to reflect quality control variations in manufacture or formulation. In addition to the chemical information provided in response to the first two sentences, identify the major components in at least the following categories: surface active agents, solvents, and additives.
(11) Heavy Metals, Cyanide, and Chlorinated Hydrocarbons. Using standard test procedures, state the concentrations or upper limits of the following materials:
(i) Arsenic, cadmium, chromium, copper, lead, mercury, nickel, zinc, plus any other metals that may be reasonably expected to be in the sample. Atomic absorption methods should be used and the detailed analytical methods and sample preparation shall be fully described.
(ii) Cyanide. Standard calorimetric procedures should be used.
(iii) Chlorinated hydrocarbons. Gas chromatography should be used and the detailed analytical methods and sample preparation shall be fully described. At a minimum, the following test methods shall be used for chlorinated hydrocarbon analyses: EPA Method 601—Purgeable halocarbons (Standard Method 6230 B) and EPA Method 608—Organochlorine pesticides and PCBs (Standard Method 6630 C).
(12) The technical product data submission shall include the identity of the laboratory that performed the required tests, the qualifications of the laboratory staff, including professional biographical information for individuals responsible for any tests, and laboratory experience with similar tests. Laboratories performing toxicity tests for dispersant toxicity must demonstrate previous toxicity test experience in order for their results to be accepted. It is the responsibility of the submitter to select competent analytical laboratories based on the guidelines contained herein. EPA reserves the right to refuse to accept a submission of technical product data because of lack of qualification of the analytical laboratory, significant variance between submitted data and any laboratory confirmation performed by EPA, or other circumstances that would result in inadequate or inaccurate information on the dispersing agent.
(b)
(2) Name, address, and telephone number of the manufacturer, importer, or vendor.
(3) Name, address, and telephone number of primary distributors or sales outlets.
(4) Special handling and worker precautions for storage and field application. Maximum and minimum storage temperatures, to include optimum ranges as well as temperatures that will cause phase separations, chemical changes, or other alterations to the effectiveness of the product.
(5) Shelf life.
(6) Recommended application procedures, concentrations, and conditions for use depending upon water salinity, water temperature, types and ages of the pollutants, and any other application restrictions.
(7) Toxicity. Use standard toxicity test methods described in appendix C to part 300.
(8) Follow the data requirement specifications in paragraph (a)(9) of this section.
(9) Surface Washing Agent Components. Itemize by chemical name and percentage by weight each component of the total formulation. The percentages will include maximum, minimum, and average weights in order to reflect quality control variations in manufacture or formulation. In addition to the chemical information provided in response to the first two sentences, identify the major components in at least the following categories: surface active agents, solvents, and additives.
(10)
(11) Analytical Laboratory Requirements for Technical Product Data. Follow specifications in paragraph (a)(12) of this section.
(c)
(2) Name, address, and telephone number of the manufacturer, importer, or vendor.
(3) Name, address, and telephone number of primary distributors or sales outlets.
(4) Special handling and worker precautions for storage and field application. Maximum and minimum storage temperatures, to include optimum ranges as well as temperatures that will cause phase separations, chemical changes, or other alterations to the effectiveness of the product.
(5) Shelf life.
(6) Recommended application procedures, concentrations, and conditions for use depending upon water salinity, water temperature, types and ages of the pollutants, and any other application restrictions.
(7)
(8) Follow the data requirement specifications in paragraph (a)(9) of this section.
(9) Test to Distinguish Between Surface Collecting Agents and Other Chemical Agents.
(i) Method Summary—Five milliliters of the chemical under test are mixed with 95 milliliters of distilled water and allowed to stand undisturbed for one hour. Then the volume of the upper phase is determined to the nearest one milliliter.
(ii) Apparatus.
(A) Mixing Cylinder: 100 milliliter subdivisions and fitted with a glass stopper.
(B) Pipettes: Volumetric pipette, 5.0 milliliter.
(C) Timers.
(iii) Procedure—Add 95 milliliters of distilled water at 22 °C, plus or minus 3 °C, to a 100 milliliter mixing cylinder. To the surface of the water in the mixing cylinder, add 5.0 milliliters of the chemical under test. Insert the stopper and invert the cylinder five times in ten seconds. Set upright for one hour at 22 °C, plus or minus 3 °C, and then measure the chemical layer at the surface of the water. If the major portion of the chemical added (75 percent) is at the water surface as a separate and easily distinguished layer, the product is a surface collecting agent.
(10) Surface Collecting Agent Components. Itemize by chemical name and percentage by weight each component of the total formulation. The percentages should include maximum, minimum, and average weights in order to reflect quality control variations in manufacture or formulation. In addition to the chemical information provided in response to the first two sentences, identify the major components in at least the following categories: surface action agents, solvents, and additives.
(11) Heavy Metals, Cyanide, and Chlorinated Hydrocarbons. Follow specifications in paragraph (a)(11) of this section.
(12) Analytical Laboratory Requirements for Technical Product Data. Follow specifications in paragraph (a)(12) of this section.
(d)
(2) Name, address, and telephone number of the manufacturer, importer, or vendor.
(3) Name, address, and telephone number of primary distributors or sales outlets.
(4) Special handling and worker precautions for storage and field application. Maximum and minimum storage temperatures.
(5) Shelf life.
(6) Recommended application procedures, concentrations, and conditions for use depending upon water salinity, water temperature, types and ages of the pollutants, and any other application restrictions.
(7) Bioremediation Agent Effectiveness. Use bioremediation agent effectiveness test methods described in appendix C to part 300.
(8) Bioremediation Agent Toxicity [Reserved].
(9) Biological additives.
(i) For microbiological cultures, furnish the following information:
(A) Listing of each component of the total formulation, other than microorganisms, by chemical name and percentage by weight.
(B) Listing of all microorganisms by species.
(C) Percentage of each species in the composition of the additive.
(D) Optimum pH, temperature, and salinity ranges for use of the additive, and maximum and minimum pH, temperature, and salinity levels above or below which the effectiveness of the additive is reduced to half its optimum capacity.
(E) Special nutrient requirements, if any.
(F) Separate listing of the following, and test methods for such determinations: Salmonella, fecal coliform, Shigella, Staphylococcus Coagulase positive, and Beta Hemolytic Streptococci.
(ii) For enzyme additives, furnish the following information:
(A) Listing of each component of the total formulation, other than enzymes, by chemical name and percentage by weight.
(B) Enzyme name(s).
(C) International Union of Biochemistry (I.U.B.) number(s).
(D) Source of the enzyme.
(E) Units.
(F) Specific Activity.
(G) Optimum pH, temperature, and salinity ranges for use of the additive, and maximum and minimum pH, temperature, and salinity levels above or below which the effectiveness of the additive is reduced to half its optimum capacity.
(H) Enzyme shelf life.
(I) Enzyme optimum storage conditions.
(10) For nutrient additives, furnish the following information:
(i) Listing of each component of the total formulation by chemical name and percentage by weight.
(ii) Nutrient additive optimum storage conditions.
(11) Analytical Laboratory Requirements for Technical Product Data. Follow specifications in paragraph (a)(12) of this section.
(e)
(f)
(2) Name, address, and telephone number of the manufacturer, importer, or vendor.
(3) Name, address, and telephone number of primary distributors or sales outlets.
(4) Brief description of recommended uses of the product and how the product works.
(5) Special handling and worker precautions for storage and field application. Maximum and minimum storage temperatures, to include optimum ranges as well as temperatures that will cause phase separations, chemical changes, or other alternatives to the effectiveness of the product.
(6) Shelf life.
(7) Recommended application procedures, concentrations, and conditions for use depending upon water salinity, water temperature, types and ages of the pollutants, and any other application restrictions.
(8) Toxicity. Use standard toxicity test methods described in appendix C to part 300.
(9) Follow the data requirement specifications in paragraph (a)(9) of this section.
(10) Miscellaneous Oil Spill Control Agent Components. Itemize by chemical name and percentage by weight each component of the total formulation. The percentages should include maximum, minimum, and average weights in order to reflect quality control variations in manufacture or formulation. In addition to the chemical information provided in response to the first two sentences, identify the major components in at least the following categories: surface active agents, solvents, and additives.
(11) Heavy Metals, Cyanide, and Chlorinated Hydrocarbons. Follow specifications in paragraph (a)(11) of this section.
(12) For any miscellaneous oil spill control agent that contains microbiological cultures, enzyme additives, or nutrient additives, furnish the information specified in paragraphs (d)(9) and (d)(10) of this section, as appropriate.
(13) Analytical Laboratory Requirements for Technical Product Data. Follow specifications in paragraph (a)(12) of this section.
(g)
(i) Organic products—
(A) Peat moss or straw;
(B) Cellulose fibers or cork;
(C) Corn cobs;
(D) Chicken, duck, or other bird feathers.
(ii) Mineral compounds—
(A) Volcanic ash or perlite;
(B) Vermiculite or zeolite.
(iii) Synthetic products—
(A) Polypropylene;
(B) Polyethylene;
(C) Polyurethane;
(D) Polyester.
(2) EPA does not require technical product data submissions for sorbents and does not include sorbents on the NCP Product Schedule.
(3) Manufacturers that produce sorbent materials that consist of materials other than those listed in paragraph (g)(1) of this section shall submit to EPA the technical product data specified for miscellaneous oil spill
(4) Certification. OSCs may request a written certification from manufacturers that produce sorbent materials that consist solely of the materials listed in paragraph (g)(1) of this section prior to making a decision on the use of a particular sorbent material. The certification at a minimum shall state that the sorbent consists solely of the materials listed in § 300.915(g)(1) of the NCP. The following statement, when completed, dated, and signed by a sorbent manufacturer, is sufficient to meet the written certification requirement:
(h)
(a)
(2) EPA reserves the right to request further documentation of the manufacturers' test results. EPA also reserves the right to verify test results and consider the results of EPA's verification testing in determining whether the dispersant meets listing criteria. EPA will, within 60 days of receiving a complete application as specified in § 300.915(a) of this part, notify the manufacturer of its decision to list the product on the Schedule, or request additional information and/or a sample of the product in order to review and/or conduct validation sampling. If EPA requests additional information and/or a product sample, within 60 days of receiving such additional information or sample, EPA will then notify the manufacturer in writing of its decision to list or not list the product.
(3) Request for review of decision. (i) A manufacturer whose product was determined to be ineligible for listing on the NCP Product Schedule may request EPA's Administrator to review the determination. The request must be made in writing within 30 days of receiving notification of EPA's decision to not list the dispersant on the Schedule. The request shall contain a clear and concise statement with supporting facts and technical analysis demonstrating that EPA's decision was incorrect.
(ii) The Administrator or his designee may request additional information from the manufacturer, or from any other person, and may provide for a conference between EPA and the manufacturer, if appropriate. The Administrator or his designee shall render a decision within 60 days of receiving the request, or within 60 days of receiving requested additional information, if appropriate, and shall notify the manufacturer of his decision in writing.
(b)
(2) EPA will inform the submitter in writing, within 60 days of the receipt of technical product data, of its decision on adding the product to the Schedule.
(c) The submitter may assert that certain information in the technical product data submissions, including technical product data submissions for sorbents pursuant to § 300.915(g)(3), is confidential business information. EPA will handle such claims pursuant to the provisions in 40 CFR part 2, subpart B. Such information must be submitted separately from non-confidential information, clearly identified, and clearly marked “Confidential Business Information.” If the submitter fails to make such a claim at the time of submittal, EPA may make the information available to the public without further notice.
(d) The submitter must notify EPA of any changes in the composition, formulation, or application of the dispersant, surface washing agent, surface collecting agent, bioremediation agent, or miscellaneous oil spill control agent. On the basis of this data, EPA may require retesting of the product if the change is likely to affect the effectiveness or toxicity of the product.
(e) The listing of a product on the NCP Product Schedule does not constitute approval of the product. To avoid possible misinterpretation or misrepresentation, any label, advertisement, or technical literature that refers to the placement of the product on the NCP Product Schedule must either reproduce in its entirety EPA's written statement that it will add the product to the NCP Product Schedule under § 300.920(a)(2) or (b)(2), or include the disclaimer shown below. If the disclaimer is used, it must be conspicuous and must be fully reproduced. Failure to comply with these restrictions or any other improper attempt to demonstrate the approval of the product by any NRT or other U.S. Government agency shall constitute grounds for removing the product from the NCP Product Schedule.
(a) Governmental ownership or control of property by involuntary acquisitions or involuntary transfers within the meaning of CERCLA section 101(20)(D) or section 101(35)(A)(ii) includes, but is not limited to:
(1) Acquisitions by or transfers to the government in its capacity as a sovereign, including transfers or acquisitions pursuant to abandonment proceedings, or as the result of tax delinquency, or escheat, or other circumstances in which the government involuntarily obtains ownership or control of property by virtue of its function as sovereign;
(2) Acquisitions by or transfers to a government entity or its agent (including governmental lending and credit institutions, loan guarantors, loan insurers, and financial regulatory entities which acquire security interests or properties of failed private lending or depository institutions) acting as a conservator or receiver pursuant to a clear and direct statutory mandate or regulatory authority;
(3) Acquisitions or transfers of assets through foreclosure and its equivalents (as defined in 40 CFR 300.1100(d)(1)) or other means by a Federal, state, or local government entity in the course of administering a governmental loan
(4) Acquisitions by or transfers to a government entity pursuant to seizure or forfeiture authority.
(b) Nothing in this section or in CERCLA section 101(20)(D) or section 101(35)(A)(ii) affects the applicability of 40 CFR 300.1100 to any security interest, property, or asset acquired pursuant to an involuntary acquisition or transfer, as described in this section.
Reference to 40 CFR 300.1100 is a reference to the provisions regarding secured creditors in CERCLA sections 101(20)(E)-(G), 42 U.S.C. 9601(20)(E)-(G).
The Hazard Ranking System (HRS) is the principal mechanism the U.S. Environmental Protection Agency (EPA) uses to place sites on the National Priorities List (NPL). The HRS serves as a screening device to evaluate the potential for releases of uncontrolled hazardous substances to cause human health or environmental damage. The HRS provides a measure of relative rather than absolute risk. It is designed so that it can be consistently applied to a wide variety of sites.
HRS
HRS
HRS
HRS
HRS
Any area where a hazardous substance has been deposited, stored, disposed, or placed, plus those soils that have become contaminated from migration of a hazardous substance. Sources do not include those volumes of air, ground water, surface water, or surface water sediments that have become contaminated by migration, except: in the case of either a ground water plume with no identified source or contaminated surface water sediments with no identified source, the plume or contaminated sediments may be considered a source.
2.1
• Ground Water Migration (S
• Surface Water Migration (S
• Soil Exposure (S
• Air Migration (S
The ground water and air migration pathways use single threat evaluations, while the surface water migration and soil exposure pathways use multiple threat evaluations. Three threats are evaluated for the surface water migration pathway: drinking water, human food chain, and environmental. These threats are evaluated for two separate migration components- -overland/flood migration and ground water to surface water migration. Two threats are evaluated for the soil exposure pathway: resident population and nearby population.
The HRS is structured to provide a parallel evaluation for each of these pathways and threats. This section focuses on these parallel evaluations, starting with the calculation of the HRS site score and the individual pathway scores.
2.1.1
2.1.2
2.1.3
• Characterizing sources.
-Identifying sources (and, for the soil exposure pathway, areas of observed contamination [see section 5.0.1]).
-Identifying hazardous substances associated with each source (or area of observed contamination).
-Identifying hazardous substances available to a pathway.
• Scoring likelihood of release (or likelihood of exposure) factor category.
-Scoring observed release (or observed contamination).
-Scoring potential to release when there is no observed release.
• Scoring waste characteristics factor category.
-Evaluating toxicity.
-Combining toxicity with mobility, persistence, and/or bioaccumulation (or ecosystem bioaccumulation) potential, as appropriate to the pathway (or threat).
-Evaluating hazardous waste quantity.
-Combining hazardous waste quantity with the other waste characteristics factors.
-Determining waste characteristics factor category value.
• Scoring targets factor category.
-Determining level of contamination for targets.
These evaluations are essentially identical for the three migration pathways (ground water, surface water, and air). However, the evaluations differ in certain respects for the soil exposure pathway.
Section 7 specifies modifications that apply to each pathway when evaluating sites containing radioactive substances.
Section 2 focuses on evaluations common at the pathway and threat levels. Note that for the ground water and surface water migration pathways, separate scores are calculated for each aquifer (see section 3.0) and each watershed (see sections 4.1.1.3 and 4.2.1.5) when determining the pathway scores for a site. Although the evaluations in section 2 do not vary when different aquifers or watersheds are scored at a site, the specific factor values (for example, observed release, hazardous waste quantity, toxicity/mobility) that result from these evaluations can vary by aquifer and by watershed at the site. This can occur through differences both in the specific sources and targets eligible to be evaluated for each aquifer and watershed and in whether observed releases can be established for each aquifer and watershed. Such differences in scoring at the aquifer and watershed level are addressed in sections 3 and 4, not section 2.
2.2
• Sources (and areas of observed contamination) at the site.
• Hazardous substances associated with these sources (or areas of observed contamination).
• Pathways potentially threatened by these hazardous substances.
Table 2-2 presents a sample worksheet for source characterization.
2.2.1
2.2.2
For an area of observed contamination in the soil exposure pathway, consider only those hazardous substances that meet the criteria for observed contamination for that area (see section 5.0.1) to be associated with that area when evaluating the pathway.
2.2.3
• Ground water migration.
-Hazardous substances that meet the criteria for an observed release (see section 2.3) to ground water.
-All hazardous substances associated with a source with a ground water containment factor value greater than 0 (see section 3.1.2.1).
• Surface water migration—overland/flood component.
-Hazardous substances that meet the criteria for an observed release to surface water in the watershed being evaluated.
-All hazardous substances associated with a source with a surface water containment factor value greater than 0 for the watershed (see sections 4.1.2.1.2.1.1 and 4.1.2.1.2.2.1).
• Surface water migration—ground water to surface water component.
-Hazardous substances that meet the criteria for an observed release to ground water.
-All hazardous substances associated with a source with a ground water containment factor value greater than 0 (see sections 4.2.2.1.2 and 3.1.2.1).
• Air migration.
-Hazardous substances that meet the criteria for an observed release to the atmosphere.
-All gaseous hazardous substances associated with a source with a gas containment factor value greater than 0 (see section 6.1.2.1.1).
-All particulate hazardous substances associated with a source with a particulate containment factor value greater than 0 (see section 6.1.2.2.1).
• For each migration pathway, in those instances when the specific source(s) containing the hazardous substance cannot be documented, consider that hazardous substance to be available to migrate to the pathway when it can be associated (see section 2.2.2) with at least one source having a containment factor value greater than 0 for that pathway.
In evaluating the soil exposure pathway, consider the following hazardous substances available to the pathway:
• Soil exposure—resident population threat.
-All hazardous substances that meet the criteria for observed contamination at the site (see section 5.0.1).
• Soil exposure—nearby population threat.
-All hazardous substances that meet the criteria for observed contamination at areas with an attractiveness/accessibility factor value greater than 0 (see section 5.2.1.1).
2.3
Establish an observed release either by direct observation of the release of a hazardous substance into the media being evaluated (for example, surface water) or by chemical analysis of samples appropriate to the pathway being evaluated (see sections 3, 4, and 6). The minimum standard to establish an observed release by chemical analysis is analytical evidence of a hazardous substance in the media significantly above the background level. Further, some portion of the release must be attributable to the site. Use the criteria in table 2-3 as the standard for determining analytical significance. (The criteria in table 2-3 are also used in establishing observed contamination for the soil exposure pathway, see section 5.0.1.) Separate criteria apply to radionuclides (see section 7.1.1).
2.4
2.4.1
Evaluation of the toxicity factor is specified in section 2.4.1.1. Use and evaluation of the mobility, persistence, and/or bioaccumulation (or ecosystem bioaccumulation) potential factors vary by pathway (or threat) and are specified under the appropriate pathway (or threat) section. Section 2.4.1.2 identifies the specific factors that are combined with toxicity in evaluating each pathway (or threat).
2.4.1.1
Establish human toxicity factor values based on quantitative dose-response parameters for the following three types of toxicity:
• Cancer- -Use slope factors (also referred to as cancer potency factors) combined with weight-of-evidence ratings for carcinogenicity. If a slope factor is not available for a substance, use its ED
• Noncancer toxicological responses of chronic exposure- -use reference dose (RfD) values.
• Noncancer toxicological responses of acute exposure- -use acute toxicity parameters, such as the LD
Assign human toxicity factor values to a hazardous substance using table 2-4, as follows:
• If RfD and slope factor values are both available for the hazardous substance, assign the substance a value from table 2-4 for each. Select the higher of the two values assigned and use it as the overall toxicity factor value for the hazardous substance.
• If either an RfD or slope factor value is available, but not both, assign the hazardous substance an overall toxicity factor value from table 2-4 based solely on the available value (RfD or slope factor).
• If neither an RfD nor slope factor value is available, assign the hazardous substance an overall toxicity factor value from table 2-4 based solely on acute toxicity. That is, consider acute toxicity in table 2-4 only when both RfD and slope factor values are not available.
• If neither an RfD, nor slope factor, nor acute toxicity value is available, assign the hazardous substance an overall toxicity factor value of 0 and use other hazardous substances for which information is available in evaluating the pathway.
If a toxicity factor value of 0 is assigned to all hazardous substances available to a particular pathway (that is, insufficient toxicity data are available for evaluating all the substances), use a default value of 100 as the overall human toxicity factor value for all hazardous substances available to the pathway. For hazardous substances having usable toxicity data for multiple exposure routes (for example, inhalation and ingestion), consider all exposure routes and use the highest assigned value, regardless of exposure route, as the toxicity factor value.
For HRS purposes, assign both asbestos and lead (and its compounds) a human toxicity factor value of 10,000.
Separate criteria apply for assigning factor values for human toxicity and ecosystem toxicity for radionuclides (see sections 7.2.1 and 7.2.2).
2.4.1.2
• Ground water migration.
-Determine a combined human toxicity/mobility factor value for the hazardous substance (see section 3.2.1).
• Surface water migration-overland/flood migration component.
-Determine a combined human toxicity/persistence factor value for the hazardous substance for the drinking water threat (see section 4.1.2.2.1).
-Determine a combined human toxicity/persistence/bioaccumulation factor value for the hazardous substance for the human food chain threat (see section 4.1.3.2.1).
-Determine a combined ecosystem toxicity/persistence/bioaccumulation factor value for the hazardous substance for the environmental threat (see section 4.1.4.2.1).
• Surface water migration-ground water to surface water migration component.
-Determine a combined human toxicity/mobility/persistence factor value for the hazardous substance for the drinking water threat (see section 4.2.2.2.1).
-Determine a combined human toxicity/mobility/persistence/bioaccumulation factor value for the hazardous substance for the human food chain threat (see section 4.2.3.2.1).
-Determine a combined ecosystem toxicity/mobility/persistence/bioaccumulation factor value for the hazardous substance
• Air migration.
-Determine a combined human toxicity/mobility factor value for the hazardous substance (see section 6.2.1).
Determine each combined factor value for a hazardous substance by multiplying the individual factor values appropriate to the pathway (or threat). For each migration pathway (or threat) being evaluated, select the hazardous substance with the highest combined factor value and use that substance in evaluating the waste characteristics factor category of the pathway (or threat).
For the soil exposure pathway, select the hazardous substance with the highest human toxicity factor value from among the substances that meet the criteria for observed contamination for the threat evaluated and use that substance in evaluating the waste characteristics factor category.
2.4.2
In evaluating the hazardous waste quantity factor for the three migration pathways, allocate hazardous substances and hazardous wastestreams to specific sources in the manner specified in section 2.2.2, except: consider hazardous substances and hazardous wastestreams that cannot be allocated to any specific source to constitute a separate “unallocated source” for purposes of evaluating only this factor for the three migration pathways. Do not, however, include a hazardous substance or hazardous wastestream in the unallocated source for a migration pathway if there is definitive information indicating that the substance or wastestream could only have been placed in sources with a containment factor value of 0 for that migration pathway.
In evaluating the hazardous waste quantity factor for the soil exposure pathway, allocate to each area of observed contamination only those hazardous substances that meet the criteria for observed contamination for that area of observed contamination and only those hazardous wastestreams that contain hazardous substances that meet the criteria for observed contamination for that area of observed contamination. Do not consider other hazardous substances or hazardous wastestreams at the site in evaluating this factor for the soil exposure pathway.
2.4.2.1
For the soil exposure pathway, assign a source hazardous waste quantity value to each area of observed contamination, as applicable to the threat being evaluated.
For all pathways, evaluate source hazardous waste quantity using the following four measures in the following hierarchy:
• Hazardous constituent quantity.
• Hazardous wastestream quantity.
• Volume.
• Area.
For the unallocated source, use only the first two measures.
Separate criteria apply for assigning a source hazardous waste quantity value for radionuclides (see section 7.2.5).
2.4.2.1.1
• For a hazardous waste listed pursuant to section 3001 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6901 et seq., determine its mass for the evaluation of this measure as follows:
-If the hazardous waste is listed solely for Hazard Code T (toxic waste), include only the mass of constituents in the hazardous waste that are CERCLA hazardous substances and not the mass of the entire hazardous waste.
-If the hazardous waste is listed for any other Hazard Code (including T plus any other Hazard Code), include the mass of the entire hazardous waste.
• For a RCRA hazardous waste that exhibits the characteristics identified under section 3001 of RCRA, as amended, determine its mass for the evaluation of this measure as follows:
-If the hazardous waste exhibits only the characteristic of toxicity (or only the characteristic of EP toxicity), include only the mass of constituents in the hazardous waste that are CERCLA hazardous substances and not the mass of the entire hazardous waste.
-If the hazardous waste exhibits any other characteristic identified under section 3001 (including any other characteristic plus the characteristic of toxicity [or the characteristic of EP toxicity]), include the mass of the entire hazardous waste.
Based on this mass, designated as C, assign a value for hazardous constituent quantity as follows:
• For the migration pathways, assign the source a value for hazardous constituent quantity using the Tier A equation of table 2-5.
• For the soil exposure pathway, assign the area of observed contamination a value using the Tier A equation of table 5-2 (section 5.1.2.2).
If the hazardous constituent quantity for the source (or area of observed contamination) is adequately determined (that is, the total mass of all CERCLA hazardous substances in the source and releases from the source [or in the area of observed contamination] is known or is estimated with reasonable confidence), do not evaluate the other three measures discussed below. Instead assign these other three measures a value of 0 for the source (or area of observed contamination) and proceed to section 2.4.2.1.5.
If the hazardous constituent quantity is not adequately determined, assign the source (or area of observed contamination) a value for hazardous constituent quantity based on the available data and proceed to section 2.4.2.1.2.
2.4.2.1.2
Based on this mass, designated as W, assign a value for hazardous wastestream quantity as follows:
• For the migration pathways, assign the source a value for hazardous wastestream quantity using the Tier B equation of table -2-5.
• For the soil exposure pathway, assign the area of observed contamination a value using the Tier B equation of table 5-2 (section 5.1.2.2).
Do not evaluate the volume and area measures described below if the source is the unallocated source or if the following condition applies:
• The hazardous wastestream quantity for the source (or area of observed contamination) is adequately determined—that is, total mass of all hazardous wastestreams and CERCLA pollutants and contaminants for the source and releases from the source (or for the area of observed contamination) is known or is estimated with reasonable confidence.
If the source is the unallocated source or if this condition applies, assign the volume and area measures a value of 0 for the source (or area of observed contamination) and proceed to section 2.4.2.1.5. Otherwise, assign the source (or area of observed contamination) a value for hazardous wastestream quantity based on the available data and proceed to section 2.4.2.1.3.
2.4.2.1.3
Based on the volume, designated as V, assign a value to the volume measure as follows:
• For the migration pathways, assign the source a value for volume using the appropriate Tier C equation of table 2-5.
• For the soil exposure pathway, assign the area of observed contamination a value for volume using the appropriate Tier C equation of table 5-2 (section 5.1.2.2).
If the volume of the source (or volume of the area of observed contamination, if applicable) can be determined, do not evaluate the area measure. Instead, assign the area measure a value of 0 and proceed to section 2.4.2.1.5. If the volume cannot be determined (or is not applicable for the soil exposure pathway), assign the source (or area of observed contamination) a value of 0 for the volume measure and proceed to section 2.4.2.1.4.
2.4.2.1.4
• For the migration pathways, assign the source a value for area using the appropriate Tier D equation of table 2-5.
• For the soil exposure pathway, assign the area of observed contamination a value for area using the appropriate Tier D equation of table 5-2 (section 5.1.2.2).
2.4.2.1.5
2.4.2.2
For a migration pathway, if the hazardous constituent quantity is adequately determined (see section 2.4.2.1.1) for all sources (or all portions of sources and releases remaining after a removal action), assign the value from table 2-6 as the hazardous waste quantity factor value for the pathway. If the hazardous constituent quantity is not adequately determined for one or more sources (or one or more portions of sources or releases remaining after a removal action) assign a factor value as follows:
• If any target for that migration pathway is subject to Level I or Level II concentrations (see section 2.5), assign either the value from table 2-6 or a value of 100, whichever is greater, as the hazardous waste quantity factor value for that pathway.
• If none of the targets for that pathway is subject to Level I or Level II concentrations, assign a factor value as follows:
-If there has been no removal action, assign either the value from table 2-6 or a value of 10, whichever is greater, as the hazardous waste quantity factor value for that pathway.
-If there has been a removal action:
For the soil exposure pathway, if the hazardous constituent quantity is adequately determined for all areas of observed contamination, assign the value from table 2-6 as the hazardous waste quantity factor value. If the hazardous constituent quantity is not adequately determined for one or more areas of observed contamination, assign either the value from table 2-6 or a value of 10, whichever is greater, as the hazardous waste quantity factor value.
2.4.3
2.4.3.1
2.4.3.2
• A maximum product of 1×10
• A maximum product exclusive of the bioaccumulation (or ecosystem bioaccumulation) potential factor of 1×10
Based on the total waste characteristics product, assign a waste characteristics factor category value to these threats from table -2-7.
2.5
The types of targets evaluated include the following:
• Individual (factor name varies by pathway and threat).
• Human population.
• Resources (these vary by pathway and threat).
• Sensitive environments (included for all pathways except ground water migration).
The factor values that may be assigned to each type of target have the same range for each pathway for which that type of target is evaluated. The factor value for most types of targets depends on whether the target is subject to actual or potential contamination for the pathway and whether the actual contamination is Level I or Level II:
• Actual contamination: Target is associated either with a sampling location that meets the criteria for an observed release (or observed contamination) for the pathway or with an observed release based on direct observation for the pathway (additional criteria apply for establishing actual contamination for the human food chain threat in the surface water migration pathway, see sections 4.1.3.3 and 4.2.3.3). sections 3 through 6 specify how to determine the targets associated with a sampling location or with an observed release based on direct observation. Determine whether the actual contamination is Level I or Level II as follows:
-Level I:
-Level II:
-If a target is subject to both Level I and Level II concentrations for a pathway (or threat), evaluate the target using Level I concentrations for that pathway (or threat).
• Potential contamination: Target is subject to a potential release (that is, target is not associated with actual contamination for that pathway or threat).
Assign a factor value for individual risk as follows (select the highest value that applies to the pathway or threat):
• 50 points if any individual is exposed to Level I concentrations.
• 45 points if any individual is exposed to Level II concentrations.
• Maximum of 20 points if any individual is subject to potential contamination. The value assigned is 20 multiplied by the distance or dilution weight appropriate to the pathway.
Assign factor values for population and sensitive environments as follows:
• Sum Level I targets and multiply by 10. (Level I is not used for sensitive environments in the soil exposure and air migration pathways.)
• Sum Level II targets.
• Multiply potential targets by distance or dilution weights appropriate to the pathway, sum, and divide by 10. Distance or dilution weighting accounts for diminishing exposure with increasing distance or dilution within the different pathways.
• Sum the values for the three levels.
In addition, resource value points are assigned within all pathways for welfare-related impacts (for example, impacts to agricultural land), but do not depend on whether there is actual or potential contamination.
2.5.1
• Select the benchmarks applicable to the pathway (or threat) being evaluated.
• Compare the concentrations of hazardous substances in the sample (or comparable samples) to their benchmark concentrations for the pathway (or threat), as specified in section 2.5.2.
• Determine which level applies based on this comparison.
• If none of the hazardous substances eligible to be evaluated for the sampling location has an applicable benchmark, assign Level II to the actual contamination at that sampling location for the pathway (or threat).
In making the comparison, consider only those samples, and only those hazardous substances in the sample, that meet the criteria for an observed release (or observed contamination) for the pathway, except: tissue samples from aquatic human food chain organisms may also be used as specified in sections 4.1.3.3 and 4.2.3.3 of the surface water-human food chain threat. If any hazardous substance is present in more than one comparable sample for the sampling location, use the highest concentration of that hazardous substance from any of the comparable samples in making the comparisons.
Treat sets of samples that are not comparable separately and make a separate comparison for each such set.
2.5.2
• Maximum Contaminant Level Goals (MCLGs)—ground water migration pathway and drinking water threat in surface water migration pathway. Use only MCLG values greater than 0.
• Maximum Contaminant Levels (MCLs)—ground water migration pathway and drinking water threat in surface water migration pathway.
• Food and Drug Administration Action Level (FDAAL) for fish or shellfish—human food chain threat in surface water migration pathway.
• EPA Ambient Water Quality Criteria (AWQC) for protection of aquatic life—environmental threat in surface water migration pathway.
• EPA Ambient Aquatic Life Advisory Concentrations (AALAC)—environmental threat in surface water migration pathway.
• National Ambient Air Quality Standards (NAAQS)—air migration pathway.
• National Emission Standards for Hazardous Air Pollutants (NESHAPs)—air migration pathway. Use only those NESHAPs promulgated in ambient concentration units.
• Screening concentration for cancer corresponding to that concentration that corresponds to the 10
• Screening concentration for noncancer toxicological responses corresponding to the RfD for inhalation exposures (air migration pathway) or for oral exposures (ground water migration pathway; drinking water and human food chain threats in surface water migration pathway; and soil exposure pathway).
Select the benchmark(s) applicable to the pathway (or threat) being evaluated as specified in sections 3 through 6. Compare the concentration of each hazardous substance from the sampling location to its benchmark concentration(s) for that pathway (or threat). Use only those samples and only those hazardous substances in the sample that meet the criteria for an observed release (or observed contamination) for the pathway, except: tissue samples from aquatic human food chain organisms may be used as specified in sections 4.1.3.3 and 4.2.3.3. If the concentration of any applicable hazardous substance from any sample equals or exceeds its benchmark concentration, consider the sampling location to be subject to Level I concentrations for that pathway (or threat). If more than one benchmark applies to the hazardous substance, assign Level I if the concentration of the hazardous substance equals or exceeds the lowest applicable benchmark concentration.
If no hazardous substance individually equals or exceeds its benchmark concentration, but more than one hazardous substance either meets the criteria for an observed release (or observed contamination) for the sample (or comparable samples) or is eligible to be evaluated for a tissue sample (see sections 4.1.3.3 and 4.2.3.3), calculate the indices I and J specified below based on these hazardous substances.
For those hazardous substances that are carcinogens (that is, those having a carcinogen weight-of-evidence classification of A, B, or C), calculate an index I for the sample location as follows:
For those hazardous substances for which an RfD is available, calculate an index J for the sample location as follows:
If either I or J equals or exceeds 1, consider the sampling location to be subject to Level I concentrations for that pathway (or threat). If both I and J are less than 1, consider the sampling location to be subject to Level II concentrations for that pathway (or threat). If, for the sampling location, there are sets of samples that are not comparable, calculate I and J separately for each such set, and use the highest calculated values of I and J to assign Level I and Level II.
See sections 7.3.1 and 7.3.2 for criteria for determining the level of contamination for radioactive substances.
Evaluate the ground water migration pathway based on three factor categories: likelihood of release, waste characteristics, and targets. Figure 3-1 indicates the factors included within each factor category.
Determine the ground water migration pathway score (S
Table 3-1 outlines the specific calculation procedure.
Calculate a separate ground water migration pathway score for each aquifer, using the factor category values for that aquifer for likelihood of release, waste characteristics, and targets. In doing so, include both the targets using water from that aquifer and the targets using water from all overlying aquifers through which the hazardous substances would migrate to reach the aquifer being evaluated. Assign the highest ground water migration pathway score that results for any aquifer as the ground water migration pathway score for the site.
3.0.1
3.0.1.1
For sites that consist solely of a contaminated ground water plume with no identified source, begin measuring the 4-mile target distance limit at the center of the area of observed ground water contamination. Determine the area of observed ground water contamination based on available samples that meet the criteria for an observed release.
3.0.1.2
3.0.1.2.1
3.0.1.2.2
When an aquifer discontinuity is established within the 4-mile target distance limit, exclude that portion of the aquifer beyond the discontinuity in evaluating the ground water migration pathway. However, if hazardous substances have migrated across an apparent discontinuity within the 4-mile target distance limit, do not consider this to be a discontinuity in scoring the site.
3.0.1.3
3.1
3.1.1
• Direct observation—a material that contains one or more hazardous substances has been deposited into or has been observed entering the aquifer.
• Chemical analysis—an analysis of ground water samples from the aquifer indicates that the concentration of hazardous substance(s) has increased significantly above the background concentration for the site (see section 2.3). Some portion of the significant increase must be attributable to the site to establish the observed release, except: when the source itself consists of a ground water plume with no identified source, no separate attribution is required.
If an observed release can be established for the aquifer, assign the aquifer an observed release factor value of 550, enter this value in table 3-1, and proceed to section 3.1.3. If an observed release cannot be established for the aquifer, assign an observed release factor value of 0, enter this value in table 3-1, and proceed to section 3.1.2.
3.1.2
3.1.2.1
If no source at the site meets the minimum size requirement, then select the highest value assigned to the sources at the site and assign it as the containment factor value for the aquifer being evaluated. Enter this value in table 3-1.
3.1.2.2
• Determine monthly precipitation and monthly evapotranspiration:
-Use local measured monthly averages.
-When local data are not available, use monthly averages from the nearest National Oceanographic and Atmospheric Administration weather station that is in a similar geographic setting.
-When measured monthly evapotranspiration is not available, calculate monthly potential evapotranspiration (E
Select the latitude adjusting value for each month from table 3-3. For latitudes lower than 50° North or 20° South, determine the monthly latitude adjusting value by interpolation.
• Calculate monthly net precipitation by subtracting monthly evapotranspiration (or monthly potential evapotranspiration) from monthly precipitation. If evapotranspiration (or potential evapotranspiration) exceeds precipitation for a month, assign that month a net precipitation value of 0.
• Calculate the annual net precipitation by summing the monthly net precipitation values.
• Based on the annual net precipitation, assign a net precipitation factor value from table 3-4.
Enter the value assigned from Figure 3-2 or from table 3-4, as appropriate, in table 3-1.
3.1.2.3
Determine the depth to aquifer only at locations within 2 miles of the sources at the site, except: if observed ground water contamination attributable to sources at the site extends more than 2 miles beyond these sources, use any location within the limits of this observed ground water contamination when evaluating the depth to aquifer factor for any aquifer that does not have an observed release. If the necessary geologic information is available at multiple locations, calculate the depth to aquifer at each location. Use the location having the smallest depth to assign the factor value. Enter this value in table 3-1.
3.1.2.4
• If the depth to aquifer (see section 3.1.2.3) is 10 feet or less, assign a value of 35.
• If, for the interval being evaluated, all layers that underlie a portion of the sources at the site are karst, assign a value of 35.
• Otherwise:
-Select the lowest hydraulic conductivity layer(s) from within the above interval.
-Determine hydraulic conductivities for individual layers from table 3-6 or from in-situ or laboratory tests. Use representative, measured, hydraulic conductivity values whenever available.
-If more than one layer has the same lowest hydraulic conductivity, include all such layers and sum their thicknesses. Assign a thickness of 0 feet to a karst layer that underlies any portion of the sources at the site.
-Assign a value from table 3-7 to the travel time factor, based on the thickness and hydraulic conductivity of the lowest hydraulic conductivity layer(s).
Determine travel time only at locations within 2 miles of the sources at the site, except: if observed ground water contamination attributable to sources at the site extends more than 2 miles beyond these sources, use any location within the limits of this observed ground water contamination when evaluating the travel time factor for any aquifer that does not have an observed release. If the necessary subsurface geologic information is available at multiple locations, evaluate the travel time factor at each location. Use the location having the highest travel time factor value to assign the factor value for the aquifer. Enter this value in table 3-1.
3.1.2.5
3.1.3
3.2
• Hazardous substances that meet the criteria for an observed release to ground water.
• All hazardous substances associated with a source that has a ground water containment factor value greater than 0 (see sections 2.2.2, 2.2.3, and 3.1.2.1).
3.2.1
3.2.1.1
3.2.1.2
• For any hazardous substance that meets the criteria for an observed release by chemical analysis to one or more aquifers underlying the sources at the site, regardless of the aquifer being evaluated, assign a mobility factor value of 1.
• For any hazardous substance that does not meet the criteria for an observed release by chemical analysis to at least one of the aquifers, assign that hazardous substance a mobility factor value from table 3-8 for the aquifer being evaluated, based on its water solubility and distribution coefficient (K
• If the hazardous substance cannot be assigned a mobility factor value because data on its water solubility or distribution coefficient are not available, use other hazardous substances for which information is available in evaluating the pathway.
• If none of the hazardous substances eligible to be evaluated can be assigned a mobility factor value, use a default value of 0.002 as the mobility factor value for all these hazardous substances.
Determine the water solubility to be used in table 3-8 for the hazardous substance as follows (use this same water solubility for all aquifers):
• For any hazardous substance that does not meet the criteria for an observed release by chemical analysis, if the hazardous substance is present or deposited as a liquid, use the water solubility category “Present as Liquid” in table 3-8 to assign the mobility factor value to that hazardous substance.
• Otherwise:
-For any hazardous substance that is a metal (or metalloid) and that does not meet the criteria for an observed release by chemical analysis, establish a water solubility for the hazardous substance as follows:
-For any other hazardous substance (either organic or inorganic) that does not meet the criteria for an observed release by chemical analysis, use the water solubility of that hazardous substance to assign a mobility factor value from table 3-8 to the hazardous substance.
For the aquifer being evaluated, determine the distribution coefficient to be used in table 3-8 for the hazardous substance as follows:
• For any hazardous substance that does not meet the criteria for an observed release by chemical analysis, if the entire interval from a source at the site to the aquifer being evaluated is karst, use the distribution coefficient category “Karst” in table 3-8 in assigning the mobility factor value for that hazardous substance for that aquifer.
• Otherwise:
-For any hazardous substance that is a metal (or metalloid) and that does not meet the criteria for an observed release by chemical analysis, use the distribution coefficient for the metal or (metalloid) to assign a mobility factor value from table 3-8 for that hazardous substance.
-For any other inorganic hazardous substance that does not meet the criteria for an observed release by chemical analysis,
-For any hazardous substance that is organic and that does not meet the criteria for an observed release by chemical analysis, establish a distribution coefficient for that hazardous substance as follows:
3.2.1.3
3.2.2
3.2.3
3.3
3.3.1
If there is an observed release by direct observation for a drinking water well within the target distance limit, assign Level II concentrations to that well. However, if one or more samples meet the criteria for an observed release for that well, determine if that well is subject to Level I or Level II concentrations as specified in sections 2.5.1 and 2.5.2. Use the health-based benchmarks from table 3-10 in determining the level of contamination.
Assign a value for the nearest well factor as follows:
• If one or more drinking water wells is subject to Level I concentrations, assign a value of 50.
• If not, but if one or more drinking water wells is subject to Level II concentrations, assign a value of 45.
• If none of the drinking water wells is subject to Level I or Level II concentrations, assign a value as follows:
-If one of the target aquifers is a karst aquifer that underlies any portion of the sources at the site and any well draws
-If not, determine the shortest distance to any drinking water well, as measured from any source at the site with a ground water containment factor value greater than 0. Select a value from table 3-11 based on this distance. Assign it as the value for the nearest well factor.
Enter the value assigned to the nearest well factor in table 3-1.
3.3.2
In estimating residential population, when the estimate is based on the number of residences, multiply each residence by the average number of persons per residence for the county in which the residence is located.
In determining the population served by a well, if the water from the well is blended with other water (for example, water from other ground water wells or surface water intakes), apportion the total population regularly served by the blended system to the well based on the well's relative contribution to the total blended system. In estimating the well's relative contribution, assume each well and intake contributes equally and apportion the population accordingly, except: if the relative contribution of any one well or intake exceeds 40 percent based on average annual pumpage or capacity, estimate the relative contribution of the wells and intakes considering the following data, if available:
• Average annual pumpage from the ground water wells and surface water intakes in the blended system.
• Capacities of the wells and intakes in the blended system.
For systems with standby ground water wells or standby surface water intakes, apportion the total population regularly served by the blended system as described above, except:
• Exclude standby surface water intakes in apportioning the population.
• When using pumpage data for a standby ground water well, use average pumpage for the period during which the standby well is used rather than average annual pumpage.
• For that portion of the total population that could be apportioned to a standby ground water well, assign that portion of the population either to that standby well or to the other ground water well(s) and surface water intake(s) that serve that population; do not assign that portion of the population both to the standby well and to the other well(s) and intake(s) in the blended system. Use the apportioning that results in the highest population factor value. (Either include all standby well(s) or exclude some or all of the standby well(s) as appropriate to obtain this highest value.) Note that the specific standby well(s) included or excluded and, thus, the specific apportioning may vary in evaluating different aquifers and in evaluating the surface water pathway.
3.3.2.1
If no samples meet the criteria for an observed release for a point of withdrawal and there is no observed release by direct observation for that point of withdrawal, evaluate that point of withdrawal using the potential contamination factor in section 3.3.2.4. If there is an observed release by direct observation, use Level II concentrations for that point of withdrawal. However, if one or more samples meet the criteria for an observed release for the point of withdrawal, determine
For the potential contamination factor, use population ranges in evaluating the factor as specified in section 3.3.2.4. For the Level I and Level II concentrations factors, use the population estimate, not population ranges, in evaluating both factors.
3.3.2.2
3.3.2.3
3.3.2.4
Assign distance-weighted population values from table 3-12 to this population as follows:
• Use the “Karst” portion of table 3-12 to assign values only for that portion of the population served by points of withdrawal that draw drinking water from a karst aquifer that underlies any portion of the sources at the site.
-For this portion of the population, determine the number of people included within each “Karst” distance category in table 3-12.
-Assign a distance-weighted population value for each distance category based on the number of people included within the distance category.
• Use the “Other Than Karst” portion of table 3-12 for the remainder of the population served by points of withdrawal subject to potential contamination.
-For this portion of the population, determine the number of people included within each “Other Than Karst” distance category in table 3-12.
-Assign a distance-weighted population value for each distance category based on the number of people included within the distance category.
Calculate the value for the potential contamination factor (PC) as follows:
If PC is less than 1, do not round it to the nearest integer; if PC is 1 or more, round to the nearest integer. Enter this value in table 3-1.
3.3.2.5
3.3.3
Assign a resources value of 5 if water drawn from any target well for the aquifer being evaluated or overlying aquifers (as specified in section 3.0) is used for one or more of the following purposes:
• Irrigation (5-acre minimum) of commercial food crops or commercial forage crops.
• Watering of commercial livestock.
• Ingredient in commercial food preparation.
• Supply for commercial aquaculture.
• Supply for a major or designated water recreation area, excluding drinking water use.
Assign a resources value of 5 if no drinking water wells are within the target distance limit, but the water in the aquifer being evaluated or any overlying aquifers (as specified in section 3.0) is usable for drinking water purposes.
Assign a resources value of 0 if none of the above applies.
3.3.4
Assign a value of 20 if either of the following criteria applies for the aquifer being evaluated or overlying aquifers:
• A source with a ground water containment factor value greater than 0 lies, either partially or fully, within or above the designated Wellhead Protection Area.
• Observed ground water contamination attributable to the sources at the site lies, either partially or fully, within the designated Wellhead Protection Area.
If neither criterion applies, assign a value of 5, if, within the target distance limit, there is a designated Wellhead Protection Area applicable to the aquifer being evaluated or overlying aquifers.
Assign a value of 0 if none of the above applies.
3.3.5
3.4
3.5
4.0.1
• Overland/flood migration to surface water (see section 4.1).
• Ground water to surface water migration (see section 4.2).
Score one or both components, considering their relative importance. If only one component is scored, assign its score as the surface
4.0.2
Rivers include:
• Perennially flowing waters from point of origin to the ocean or to coastal tidal waters, whichever comes first, and wetlands contiguous to these flowing waters.
• Aboveground portions of disappearing rivers.
• Man-made ditches only insofar as they perennially flow into other surface water.
• Intermittently flowing waters and contiguous intermittently flowing ditches only in arid or semiarid areas with less than 20 inches of mean annual precipitation.
Lakes include:
• Natural and man-made lakes (including impoundments) that lie along rivers, but excluding the Great Lakes.
• Isolated, but perennial, lakes, ponds, and wetlands.
• Static water channels or oxbow lakes contiguous to rivers.
• Small rivers, without diking, that merge into surrounding perennially inundated wetlands.
• Wetlands contiguous to water bodies defined here as lakes.
Ocean and ocean-like water bodies include:
• Ocean areas seaward from the baseline of the Territorial Sea. (This baseline represents the generalized coastline of the United States. It is parallel to the seaward limit of the Territorial Sea and other maritime limits such as the inner boundary of Federal fisheries jurisdiction and the limit of States jurisdiction under the Submerged Lands Act, as amended.)
• The Great Lakes.
• Wetlands contiguous to the Great Lakes.
Coastal tidal waters include:
• Embayments, harbors, sounds, estuaries, back bays, lagoons, wetlands, etc. seaward from mouths of rivers and landward from the baseline of the Territorial Sea.
4.1
4.1.1
4.1.1.1
• Begin the overland segment at a source and proceed downgradient to the probable point of entry to surface water.
• Begin the in-water segment at this probable point of entry.
-For rivers, continue the in-water segment in the direction of flow (including any tidal flows) for the distance established by the target distance limit (see section 4.1.1.2).
-For lakes, oceans, coastal tidal waters, or Great Lakes, do not consider flow direction. Instead apply the target distance limit as an arc.
-If the in-water segment includes both rivers and lakes (or oceans, coastal tidal waters, or Great Lakes), apply the target distance limit to their combined in-water segments.
For sites that consist of contaminated sediments with no identified source, the hazardous substance migration path consists solely of the in-water segment specified in section 4.1.1.2.
Consider a site to be in two or more watersheds for this component if two or more hazardous substance migration paths from the sources at the site do not reach a common point within the target distance limit. If the site is in more than one watershed, define a separate hazardous substance migration path for each watershed. Evaluate the overland/flood migration component for each watershed separately as specified in section 4.1.1.3.
4.1.1.2
• If there is no observed release to surface water in the watershed or if there is an observed release only by direct observation (see section 4.1.2.1.1), begin measuring the target distance limit for the watershed at the probable point of entry to surface water and extend it for 15 miles along the surface water from that point.
• If there is an observed release from the site to the surface water in the watershed that is based on sampling, begin measuring the target distance limit for the watershed at the probable point of entry; extend the target distance limit either for 15 miles along the surface water or to the most distant sample point that meets the criteria for an observed release to that watershed, whichever is greater.
In evaluating the site, include only surface water targets (for example, intakes, fisheries, sensitive environments) that are within or contiguous to the hazardous substance migration path and located, partially or wholly, at or between the probable point of entry and the target distance limit applicable to the watershed:
• If flow within the hazardous substance migration path is reversed by tides, evaluate upstream targets only if there is documentation that the tidal run could carry substances from the site as far as those upstream targets.
• Determine whether targets within or contiguous to the hazardous substance migration path are subject to actual or potential contamination as follows:
-If a target is located, partially or wholly, either at or between the probable point of entry and any sampling point that meets the criteria for an observed release to the watershed or at a point that meets the criteria for an observed release by direct observation, evaluate that target as subject to actual contamination, except as otherwise specified for fisheries in section 4.1.3.3 and for wetlands in section 4.1.4.3.1.1. If the actual contamination is based on direct observation, assign Level II to the actual contamination. However, if the actual contamination is based on samples, determine whether the actual contamination is at Level I or Level II concentrations as specified in sections 4.1.2.3, 4.1.3.3, and 4.1.4.3.1.
-If a target is located, partially or wholly, within the target distance limit for the watershed, but not at or between the probable point of entry and any sampling point that meets the criteria for an observed release to the watershed, nor at a point that meets the criteria for an observed release by direct observation, evaluate it as subject to potential contamination.
For sites consisting solely of contaminated sediments with no identified source, determine the target distance limit as follows:
• If there is a clearly defined direction of flow for the surface water body (or bodies) containing the contaminated sediments, begin measuring the target distance limit at the point of observed sediment contamination that is farthest upstream (that is, at the location of the farthest available upstream sediment sample that meets the criteria for an observed release); extend the target distance limit either for 15 miles along the surface water or to the most distant downstream sample point that meets the criteria for an observed release to that watershed, whichever is greater.
• If there is no clearly defined direction of flow, begin measuring the target distance limit at the center of the area of observed sediment contamination. Extend the target distance limit as an arc either for 15 miles along the surface water or to the most distant sample point that meets the criteria for an observed release to that watershed, whichever is greater. Determine the area of observed sediment contamination based on available samples that meet the criteria for an observed release.
For these contaminated sediment sites, include only those targets (for example, intakes, fisheries, sensitive environments) that are within or contiguous to the hazardous substance migration path and located, wholly or partially, within the target distance limit for the site. Determine whether these targets are subject to actual or potential contamination as follows:
• If a target is located, partially or wholly, within the area of observed sediment contamination, evaluate it as subject to actual contamination, except as otherwise specified for fisheries in section 4.1.3.3 and wetlands in section 4.1.4.3.1.1.
-If a drinking water target is subject to actual contamination, evaluate it using Level II concentrations.
-If a human food chain target or environmental target is subject to actual contamination, evaluate it using Level I or Level II concentrations, as appropriate (see sections 4.1.3.3 and 4.1.4.3.1).
• If a target is located, partially or wholly, within the target distance limit for the watershed, but not within the area of observed sediment contamination, evaluate it as subject to potential contamination.
4.1.1.3
Determine the overland/flood migration component score (S
If the site is in only one watershed, assign the overland/flood migration score for that watershed as the overland/flood migration component score for the site.
If the site is in more than one watershed:
• Calculate a separate overland/flood migration component score for each watershed, using likelihood of release, waste characteristics, and targets applicable to each watershed.
• Select the highest overland/flood migration component score from the watersheds evaluated and assign it as the overland/flood migration component score for the site.
4.1.2
4.1.2.1
4.1.2.1.1
• Direct observation:
-A material that contains one or more hazardous substances has been seen entering surface water through migration or is known to have entered surface water through direct deposition, or
-A source area has been flooded at a time that hazardous substances were present, and one or more hazardous substances were in contact with the flood waters, or
-When evidence supports the inference of a release of a material that contains one or more hazardous substances by the site to surface water, demonstrated adverse effects associated with that release may also be used to establish an observed release.
• Chemical analysis:
-Analysis of surface water, benthic, or sediment samples indicates that the concentration of hazardous substance(s) has increased significantly above the background concentration for the site for that type of sample (see section 2.3).
-Some portion of the significant increase must be attributable to the site to establish the observed release, except: when the site itself consists of contaminated sediments with no identified source, no separate attribution is required.
If an observed release can be established for a watershed, assign an observed release factor value of 550 to that watershed, enter this value in table 4-1, and proceed to section 4.1.2.1.3. If no observed release can be established for the watershed, assign an observed release factor value of 0 to that watershed, enter this value in table 4-1, and proceed to section 4.1.2.1.2.
4.1.2.1.2
4.1.2.1.2.1
Assign potential to release by overland flow a value of 0 for the watershed if:
• No overland segment of the hazardous substance migration path can be defined for the watershed, or
• The overland segment of the hazardous substance migration path for the watershed exceeds 2 miles before surface water is encountered.
4.1.2.1.2.1.1
• If one or more sources is located in surface water in the watershed (for example, intact sealed drums in surface water), assign
• If none of the sources is located in surface water in the watershed, assign a containment factor value from table 4-2 to each source at the site that can potentially release hazardous substances to the hazardous substance migration path for this watershed. Assign the containment factor value for the watershed as follows:
-Select the highest containment factor value assigned to those sources that meet the minimum size requirement described below. Assign this highest value as the containment factor value for the watershed. Enter this value in table 4-1.
-If, for this watershed, no source at the site meets the minimum size requirement, then select the highest containment factor value assigned to the sources at the site eligible to be evaluated for this watershed and assign it as the containment factor value for the watershed. Enter this value in table 4-1.
A source meets the minimum size requirement if its source hazardous waste quantity value (see section 2.4.2.1.5) is 0.5 or more. Do not include the minimum size requirement in evaluating any other factor of this surface water migration component, except potential to release by flood as specified in section 4.1.2.1.2.2.3.
4.1.2.1.2.1.2
Rainfall. Determine the 2-year, 24-hour rainfall for the site. Use site-specific, 2-year, 24-hour rainfall data if records are available for at least 20 years. If such site-specific data are not available, estimate the 2-year, 24-hour rainfall for the site from a rainfall-frequency map. Do not round the rainfall value to the nearest integer.
Drainage area. Determine the drainage area for the sources at the site. Include in this drainage area both the source areas and the area upgradient of the sources, but exclude any portion of this drainage area for which runoff is diverted from entering the sources by storm sewers or run-on control and/or runoff management systems. Assign a drainage area value for the watershed from table 4-3.
Soil group. Based on the predominant soil group within the drainage area described above, assign a soil group designation for the watershed from table 4-4 as follows:
• Select the predominant soil group as that type which comprises the largest total area within the applicable drainage area.
• If a predominant soil group cannot be delineated, select that soil group in the drainage area that yields the highest value for the runoff factor.
Calculation of runoff factor value. Assign a combined rainfall/runoff value for the watershed from table 4-5, based on the 2-year, 24-hour rainfall and the soil group designation. Determine the runoff factor value for the watershed from table 4-6, based on the rainfall/runoff and drainage area values. Enter the runoff factor value in table 4-1.
4.1.2.1.2.1.3
4.1.2.1.2.1.4
4.1.2.1.2.2
4.1.2.1.2.2.1
4.1.2.1.2.2.2
4.1.2.1.2.2.3
Enter this highest potential to release by flood factor value for the watershed in table 4-1, as well as the values for containment (flood) and flood frequency that yield this highest value.
4.1.2.1.2.3
4.1.2.1.3
4.1.2.2
• Hazardous substances that meet the criteria for an observed release to surface water in the watershed.
• All hazardous substances associated with a source that has a surface water containment factor value greater than 0 for the watershed (see sections 2.2.2, 2.2.3, 4.1.2.1.2.1.1, and 4.1.2.1.2.2.1).
4.1.2.2.1
4.1.2.2.1.1
4.1.2.2.1.2
Estimate the half-life (t
If one or more of these four component half-lives cannot be estimated for the hazardous substance from available data, delete that component half-life from the above equation. If none of these four component half-lives can be estimated for the hazardous substance from available data, use the default procedure indicated below. Estimate a half-life for the hazardous substance for lakes or for rivers, oceans, coastal tidal waters, and Great Lakes, as appropriate.
If a half-life can be estimated for a hazardous substance:
• Assign that hazardous substance a persistence factor value from the appropriate portion of table 4-10 (that is lakes; or rivers, oceans, coastal tidal waters, and Great Lakes).
• Select the appropriate portion of table 4-10 as follows:
-If there is one or more drinking water intakes along the hazardous substance migration path for the watershed, select the nearest drinking water intake as measured from the probable point of entry. If the in-water segment between the probable point of entry and this selected intake includes both lakes and other water bodies, use the lakes portion of table 4-10 only if more than half the distance to this selected intake lies in lake(s). Otherwise, use the rivers, oceans, coastal tidal waters, and Great Lakes portion of table 4-10. For contaminated sediments with no identified source, use the point where measurement begins (see section 4.1.1.2) rather than the probable point of entry.
-If there are no drinking water intakes but there are intakes or points of use for any of the resource types listed in section 4.1.2.3.3, select the nearest such intake or point of use. Select the portion of table 4-10 based on this intake or point of use in the manner specified for drinking water intakes.
-If there are no drinking water intakes and no specified resource intakes and points of use, but there is another type of resource listed in section 4.1.2.3.3 (for example, the water is usable for drinking water purposes even though not used), select the portion of table 4-10 based on the nearest point of this resource in the manner specified for drinking water intakes.
If a half-life cannot be estimated for a hazardous substance from available data, use the following default procedure to assign a persistence factor value to that hazardous substance:
• For those hazardous substances that are metals (or metalloids), assign a persistence factor value of 1 as a default for all surface water bodies.
• For other hazardous substances (both organic and inorganic), assign a persistence factor value of 0.4 as a default for rivers, oceans, coastal tidal waters, and Great Lakes, and a persistence factor value of 0.07 as a default for lakes. Select the appropriate value in the same manner specified for using table 4-10.
Use the persistence factor value assigned based on half-life or the default procedure unless the hazardous substance can be assigned a higher factor value from Table -4-11, based on its Log K
4.1.2.2.1.3
4.1.2.2.2
4.1.2.2.3
4.1.2.3
To evaluate the nearest intake and population factors, determine whether the target surface water intakes are subject to actual or potential contamination as specified in section 4.1.1.2. Use either an observed release based on direct observation at the intake or the exposure concentrations from samples (or comparable samples) taken at or beyond the intake to make this determination (see section 4.1.2.1.1). The exposure concentrations for a sample (that is, surface water, benthic, or sediment sample) consist of the concentrations of those hazardous substances present that are significantly above background levels and attributable at least in part to the site (that is, those hazardous substance concentrations that meet the criteria for an observed release).
When an intake is subject to actual contamination, evaluate it using Level I concentrations or Level II concentrations. If the actual contamination is based on an observed release by direct observation, use Level II concentrations for that intake. However, if the actual contamination is based on an observed release from samples, determine which level applies for the intake by comparing the exposure concentrations from samples (or comparable samples) to health-based benchmarks as specified in sections 2.5.1 and 2.5.2. Use the health-based benchmarks from table 3-10 (section 3.3.1) in determining the level of contamination from samples. For contaminated sediments with no identified source, evaluate the actual contamination using Level II concentrations (see section 4.1.1.2).
4.1.2.3.1
Assign the nearest intake factor a value as follows and enter the value in table 4-1:
• If one or more of these drinking water intakes is subject to Level I concentrations as specified in section 4.1.2.3, assign a factor value of 50.
• If not, but if one or more of these drinking water intakes is subject to Level II concentrations, assign a factor value of 45.
• If none of these drinking water intakes is subject to Level I or Level II concentrations, determine the nearest of these drinking water intakes, as measured from the probable point of entry (or from the point where measurement begins for contaminated sediments with no identified source). Assign a dilution weight from table 4-13 to this intake, based on the type of surface water body in which it is located. Multiply this dilution weight by 20, round the product to the nearest integer, and assign it as the factor value.
Assign the dilution weight from table 4-13 as follows:
• For a river (that is, surface water body types specified in table 4-13 as minimal stream through very large river), assign a dilution weight based on the average annual flow in the river at the intake. If available, use the average annual discharge as defined in the U.S. Geological Survey Water Resources Data Annual Report. Otherwise, estimate the average annual flow.
• For a lake, assign a dilution weight as follows:
-For a lake that has surface water flow entering the lake, assign a dilution weight based on the sum of the average annual flows for the surface water bodies entering the lake up to the point of the intake.
-For a lake that has no surface water flow entering, but that does have surface water flow leaving, assign a dilution weight based on the sum of the average annual flows for the surface water bodies leaving the lake.
-For a closed lake (that is, a lake without surface water flow entering or leaving), assign a dilution weight based on the average annual ground water flow into the lake, if available, using the dilution weight for the corresponding river flow rate in table 4-13. If not available, assign a default dilution weight of 1.
• For the ocean and the Great Lakes, assign a dilution weight based on depth.
• For coastal tidal waters, assign a dilution weight of 0.0001; do not consider depth or flow.
• For a quiet-flowing river that has average annual flow of 10 cubic feet per second (cfs) or greater and that contains the probable point of entry to surface water, apply a zone of mixing in assigning the dilution weight:
-Start the zone of mixing at the probable point of entry and extend it for 3 miles from the probable point of entry, except: if the surface water characteristics change to turbulent within this 3-mile distance, extend the zone of mixing only to the point at which the change occurs.
-Assign a dilution weight of 0.5 to any intake that lies within this zone of mixing.
-Beyond this zone of mixing, assign a dilution weight the same as for any other river (that is, assign the dilution weight based on average annual flow).
-Treat a quiet-flowing river with an average annual flow of less than 10 cfs the same as any other river (that is, assign it a dilution weight of 1).
4.1.2.3.2
In estimating residential population, when the estimate is based on the number of residences, multiply each residence by the average number of persons per residence for the county in which the residence is located.
In estimating the population served by an intake, if the water from the intake is blended with other water (for example, water from other surface water intakes or ground water wells), apportion the total population regularly served by the blended system to the intake based on the intake's relative contribution to the total blended system. In estimating the intake's relative contribution, assume each well or intake contributes equally and apportion the population accordingly, except: if the relative contribution of any one intake or well exceeds 40 percent based on average annual pumpage or capacity, estimate the relative contribution of the wells and intakes considering the following data, if available:
• Average annual pumpage from the ground water wells and surface water intakes in the blended system.
• Capacities of the wells and intakes in the blended system.
For systems with standby surface water intakes or standby ground water wells, apportion the total population regularly served by the blended system as described above, except:
• Exclude standby ground water wells in apportioning the population.
• When using pumpage data for a standby surface water intake, use average pumpage for the period during which the standby intake is used rather than average annual pumpage.
• For that portion of the total population that could be apportioned to a standby surface water intake, assign that portion of the population either to that standby intake or to the other surface water intake(s) and ground water well(s) that serve that population; do not assign that portion of the population both to the standby intake and to the other intake(s) and well(s) in the blended system. Use the apportioning that results in the highest population factor value. (Either include all standby intake(s) or exclude some or all of the standby intake(s) as appropriate to obtain this highest value.) Note that the specific standby intake(s) included or excluded and, thus, the specific apportioning may vary in evaluating different watersheds and in evaluating the ground water pathway.
4.1.2.3.2.1
For the potential contamination factor, use population ranges in evaluating the factor as specified in section 4.1.2.3.2.4. For the Level I and Level II concentrations factors, use the population estimate, not population ranges, in evaluating both factors.
4.1.2.3.2.2
4.1.2.3.2.3
4.1.2.3.2.4
For each type of surface water body, assign a dilution-weighted population value from table 4-14, based on the number of people included for that type of surface water body. (Note that the dilution-weighted population values in table 4-14 incorporate the dilution weights from table 4-13. Do not multiply the values from table 4-14 by these dilution weights.)
Calculate the value for the potential contamination factor (PC) for the watershed as follows:
If PC is less than 1, do not round it to the nearest integer; if PC is 1 or more, round to the nearest integer. Enter this value for the potential contamination factor in table 4-1.
4.1.2.3.2.5
4.1.2.3.3
Assign a value of 5 if, within the in-water segment of the hazardous substance migration path for the watershed, the surface water is used for one or more of the following purposes:
• Irrigation (5 acre minimum) of commercial food crops or commercial forage crops.
• Watering of commercial livestock.
• Ingredient in commercial food preparation.
• Major or designated water recreation area, excluding drinking water use.
Assign a value of 5 if, within the in-water segment of the hazardous substance migration path for the watershed, the surface water is not used for drinking water, but either of the following applies:
• Any portion of the surface water is designated by a State for drinking water use under section 305(a) of the Clean Water Act, as amended.
• Any portion of the surface water is usable for drinking water purposes.
Assign a value of 0 if none of the above applies.
4.1.2.3.4
4.1.2.4
4.1.3
4.1.3.1
4.1.3.2
4.1.3.2.1
4.1.3.2.1.1
4.1.3.2.1.2
4.1.3.2.1.3
• Bioconcentration factor (BCF) data.
• Logarithm of the n-octanol-water partition coefficient (log K
• Water solubility data.
If BCF data are available for any aquatic human food chain organism for the substance being evaluated, assign the bioaccumulation potential factor value to the hazardous substance as follows:
• If BCF data are available for both fresh water and salt water for the hazardous substance, use the BCF data that correspond to the type of water body (that is, fresh water or salt water) in which the fisheries are located to assign the bioaccumulation potential factor value to the hazardous substance.
• If, however, some of the fisheries being evaluated are in fresh water and some are in salt water, or if any are in brackish water, use the BCF data that yield the higher factor value to assign the bioaccumulation potential factor value to the hazardous substance.
• If BCF data are available for either fresh water or salt water, but not for both, use the available BCF data to assign the bioaccumulation potential factor value to the hazardous substance.
If BCF data are not available for the hazardous substance, use log K
If none of these data are available, assign the hazardous substance a bioaccumulation potential factor value of 0.5.
4.1.3.2.1.4
4.1.3.2.2
4.1.3.2.3
4.1.3.3
Consider a fishery (or portion of a fishery) within the target distance limit of the watershed to be subject to actual human food chain contamination if any of the following apply:
• A hazardous substance having a bioaccumulation potential factor value of 500 or greater is present either in an observed release by direct observation to the watershed or in a surface water or sediment sample from the watershed at a level that meets the criteria for an observed release to the watershed from the site, and at least a portion of the fishery is within the boundaries of the observed release (that is, it is located either at the point of direct observation or at or between the probable point of entry and the most distant sampling point establishing the observed release).
• The fishery is closed, and a hazardous substance for which the fishery has been closed has been documented in an observed release to the watershed from the site, and at least a portion of the fishery is within the boundaries of the observed release.
• A hazardous substance is present in a tissue sample from an essentially sessile, benthic, human food chain organism from the watershed at a level that meets the criteria for an observed release to the watershed from the site, and at least a portion of the fishery is within the boundaries of the observed release.
For a fishery that meets any of these three criteria, but that is not wholly within the boundaries of the observed release, consider only the portion of the fishery that is within the boundaries of the observed release to be subject to actual human food chain contamination. Consider the remainder of the fishery within the target distance limit to be subject to potential food chain contamination.
In addition, consider all other fisheries that are partially or wholly within the target distance limit for the watershed, including fisheries partially or wholly within the boundaries of an observed release for the watershed that do not meet any of the three criteria listed above, to be subject to potential human food chain contamination. If only a portion of the fishery is within the target distance limit for the watershed, include only that portion in evaluating the targets factor category.
When a fishery (or portion of a fishery) is subject to actual food chain contamination, determine the part of the fishery subject to Level I concentrations and the part subject to Level II concentrations. If the actual food chain contamination is based on direct observation, evaluate it using Level II concentrations. However, if the actual food chain contamination is based on samples from the watershed, use these samples and, if available, additional tissue samples from aquatic human food chain organisms as specified below, to determine the part subject to
• Determine the level of actual contamination from samples (including tissue samples from essentially sessile, benthic organisms) that meet the criteria for actual food chain contamination by comparing the exposure concentrations (see section 4.1.2.3) from these samples (or comparable samples) to the health-based benchmarks from table 4-17, as described in section 2.5.1 and 2.5.2. Use only the exposure concentrations for those hazardous substances in the sample (or comparable samples) that meet the criteria for actual contamination of the fishery.
• In addition, determine the level of actual contamination from other tissue samples by comparing the concentrations of hazardous substances in the tissue samples (or comparable tissue samples) to the health-based benchmarks from table 4-17, as described in sections 2.5.1 and 2.5.2. Use only those additional tissue samples and only those hazardous substances in the tissue samples that meet all the following criteria:
-The tissue sample is from a location that is within the boundaries of the actual food chain contamination for the site (that is, either at the point of direct observation or at or between the probable point of entry and the most distant sample point meeting the criteria for actual food chain contamination).
-The tissue sample is from a species of aquatic human food chain organism that spends extended periods of time within the boundaries of the actual food chain contamination for the site and that is not an essentially sessile, benthic organism.
-The hazardous substance is a substance that is also present in a surface water, benthic, or sediment sample from within the target distance limit for the watershed and, for such a sample, meets the criteria for actual food chain contamination.
• Concentration corresponding to Food and Drug Administration Action Level (FDAAL) for fish or shellfish.
• Screening concentration for cancer corresponding to that concentration that corresponds to the 10
• Screening concentration for noncancer toxicological responses corresponding to the Reference Dose (RfD) for oral exposures.
4.1.3.3.1
• If any fishery (or portion of a fishery) is subject to Level I concentrations, assign a value of 50.
• If not, but if any fishery (or portion of a fishery) is subject to Level II concentrations, assign a value of 45.
• If not, but if there is an observed release of a hazardous substance having a bioaccumulation potential factor value of 500 or greater to surface water in the watershed and there is a fishery (or portion of a fishery) present anywhere within the target distance limit, assign a value of 20.
• If there is no observed release to surface water in the watershed or there is no observed release of a hazardous substance having a bioaccumulation potential factor value of 500 or greater, but there is a fishery (or portion of a fishery) present anywhere within the target distance limit, assign a value as follows:
-Using table 4-13, determine the highest dilution weight (that is, lowest amount of dilution) applicable to the fisheries (or portions of fisheries) within the target distance limit. Multiply this dilution weight by 20 and round to the nearest integer.
-Assign this calculated value as the factor value.
• If there are no fisheries (or portions of fisheries) within the target distance limit of the watershed, assign a value of 0.
Enter the value assigned in table 4-1.
4.1.3.3.2
4.1.3.3.2.1
Estimate the human food chain population value for each fishery (or portion of a fishery) as follows:
• Estimate human food chain production for the fishery based on the estimated annual production (in pounds) of human food chain organisms (for example, fish, shellfish) for that fishery, except: if the fishery is closed and a hazardous substance for which the fishery has been closed has been documented in an observed release to the fishery from a source at the site, use the estimated annual production for the period prior to closure of the fishery or use the estimated annual production from comparable fisheries that are not closed.
• Assign the fishery a value for human food chain population from table 4-18, based on the estimated human food production for the fishery.
• Set boundaries between fisheries at those points where human food chain production
Sum the human food chain population value for each fishery (and portion of a fishery). Multiply this sum by 10. If the product is less than 1, do not round it to the nearest integer; if 1 or more, round to the nearest integer. Assign the resulting value as the Level I concentrations factor value. Enter this value in table 4-1.
4.1.3.3.2.2
Assign each fishery (or portion of a fishery) a value for human food chain population from table 4-18, based on the estimated human food production for the fishery. Estimate the human food chain production for the fishery as specified in section 4.1.3.3.2.1.
Sum the human food chain population value for each fishery (and portion of a fishery). If this sum is less than 1, do not round it to the nearest integer; if 1 or more, round to the nearest integer. Assign the resulting value as the Level II concentrations factor value. Enter this value in table 4-1.
4.1.3.3.2.3
Calculate the value for the potential human food chain contamination factor (PF) for the watershed as follows:
In calculating PF:
• Estimate the human food chain population value (P
• Assign the fishery (or portion of a fishery) a dilution weight as indicated in table 4-13 (section 4.1.2.3.1), except: do not assign a dilution weight of 0.5 for a “3-mile mixing zone in quiet flowing river”; instead assign a dilution weight based on the average annual flow.
If PF is less than 1, do not round it to the nearest integer; if PF is 1 or more, round to the nearest integer. Enter the value assigned in table 4-1.
4.1.3.3.2.4
4.1.3.3.3
4.1.3.4
4.1.4
4.1.4.1
4.1.4.2
4.1.4.2.1
4.1.4.2.1.1
• EPA chronic Ambient Water Quality Criterion (AWQC) for the substance.
• EPA chronic Ambient Aquatic Life Advisory Concentrations (AALAC) for the substance.
• EPA acute AWQC for the substance.
• EPA acute AALAC for the substance.
• Lowest LC
In assigning the ecosystem toxicity factor value to the hazardous substance:
• If either an EPA chronic AWQC or AALAC is available for the hazardous substance, use it to assign the ecosystem toxicity factor value. Use the chronic AWQC in preference to the chronic AALAC when both are available.
• If neither is available, use the EPA acute AWQC or AALAC to assign the ecosystem toxicity factor value. Use the acute AWQC in preference to the acute AALAC.
• If none of the chronic and acute AWQCs and AALACs is available, use the lowest LC
• If an LC
If an ecosystem toxicity factor value of 0 is assigned to all hazardous substances eligible to be evaluated for the watershed (that is, insufficient data are available for evaluating all the substances), use a default value of 100 as the ecosystem toxicity factor value for all these hazardous substances.
With regard to the AWQC, AALAC, or LC
• If values for the selected AWQC, AALAC, or LC
• If, however, some of the sensitive environments being evaluated are in fresh water and some are in salt water, or if any are in brackish water, use the value (fresh water or marine) that yields the higher factor value to assign the ecosystem toxicity factor value to the hazardous substance.
• If a value for the selected AWQC, AALAC, or LC
4.1.4.2.1.2
4.1.4.2.1.3
• Use BCF data for all aquatic organisms, not just for aquatic human food chain organisms.
• Use the BCF data that corresponds to the type of water body (that is, fresh water or salt water) in which the sensitive environments (not fisheries) are located.
4.1.4.2.1.4
4.1.4.2.2
4.1.4.2.3
• Concentration corresponding to EPA Ambient Water Quality Criteria (AWQC) for protection of aquatic life (fresh water or marine).
• Concentration corresponding to EPA Ambient Aquatic Life Advisory Concentrations (AALAC).
• Select the appropriate AWQC and AALAC as follows:
-Use chronic value, if available; otherwise use acute value.
-If the sensitive environment being evaluated is in fresh water, use fresh water value, except: if no fresh water value is available, use marine value if available.
-If the sensitive environment being evaluated is in salt water, use marine value, except: if no marine value is available, use fresh water value if available.
-If the sensitive environment being evaluated is in both fresh water and salt water, or is in brackish water, use lower of fresh water or marine values.
4.1.4.3
4.1.4.3.1
Determine which factor applies to each sensitive environment as specified in section 4.1.2.3, except: use ecological-based benchmarks (Table 4-22) rather than health-based benchmarks (Table 3-10) in determining the level of contamination from samples. In determining the level of actual contamination, use a point of direct observation anywhere within the sensitive environment or samples (that is, surface water, benthic, or sediment samples) taken anywhere within or beyond the sensitive environment (or anywhere adjacent to or beyond the sensitive environment if it is contiguous to the migration path).
4.1.4.3.1.1
For those sensitive environments that are wetlands, assign an additional value from table 4-24. In assigning a value from table 4-24, include only those portions of wetlands located along the hazardous substance migration path in the area of Level I concentrations. If a wetland is located partially along the area of Level I concentrations and partially along the area of Level II concentrations and/or potential contamination, then solely for purposes of table 4-24, count the portion(s) along the areas of Level II concentrations or potential contamination under the Level II concentrations factor (section 4.1.4.3.1.2) or potential contamination factor (section 4.1.4.3.1.3), as appropriate.
Estimate the total length of wetlands along the hazardous substance migration path (that is, wetland frontage) in the area of Level I concentrations and assign a value from table 4-24 based on this total length. Estimate this length as follows:
• For an isolated wetland or for a wetland where the probable point of entry to surface water is in the wetland, use the perimeter of that portion of the wetland subject to Level I concentrations as the length.
• For rivers, use the length of the wetlands contiguous to the in-water segment of the hazardous substance migration path (that is, wetland frontage).
• For lakes, oceans, coastal tidal waters, and Great Lakes, use the length of the wetlands along the shoreline within the target distance limit (that is, wetland frontage along the shoreline).
Calculate the Level I concentrations factor value (SH) for the watershed as follows:
Enter the value assigned in table 4-1.
4.1.4.3.1.2
For those sensitive environments that are wetlands, assign an additional value from table 4-24. In assigning a value from table 4-24, include only those portions of wetlands located along the hazardous substance migration path in the area of Level II concentrations, as specified in section 4.1.4.3.1.1.
Estimate the total length of wetlands along the hazardous substance migration path (that is, wetland frontage) in the area of Level II concentrations and assign a value from table 4-24 based on this total length. Estimate this length as specified in section 4.1.4.3.1.1, except: for an isolated wetland or for a wetland where the probable point of entry to surface water is in the wetland, use the perimeter of that portion of the wetland subject to Level II (not Level I) concentrations as the length.
Calculate the Level II concentrations value (SL) for the watershed as follows:
Enter the value assigned in table 4-1.
4.1.4.3.1.3
For each type of surface water body in table 4-13 (section 4.1.2.3.1), sum the value(s)
For those sensitive environments that are wetlands, assign an additional value from table 4-24. In assigning a value from table 4-24, include only those portions of wetlands located along the hazardous substance migration path in the area of potential contamination, as specified in section 4.1.4.3.1.1. Aggregate these wetlands by type of surface water body, except: do not use the surface water body type “3-mile mixing zone in quiet flowing river.” Treat the wetlands aggregated within each type of surface water body as separate sensitive environments solely for purposes of applying table 4-24. Estimate the total length of the wetlands within each surface water body type as specified in section 4.1.4.3.1.1, except: for an isolated wetland or for a wetland where the probable point of entry to surface water is in the wetland, use the perimeter of that portion of the wetland subject to potential contamination (or the portion of that perimeter that is within the target distance limit) as the length. Assign a separate value from table 4-24 for each type of surface water body in the watershed.
Calculate the potential contamination factor value (SP) for the watershed as follows:
If SP is less than 1, do not round it to the nearest integer; if SP is 1 or more, round to the nearest integer. Enter this value for the potential contamination factor in table 4-1.
4.1.4.3.1.4
4.1.4.4
4.1.5
4.1.6
4.2
4.2.1
4.2.1.1
• A portion of the surface water is within 1 mile of one or more sources at the site having a containment factor value greater than 0 (see section 4.2.2.1.2).
• No aquifer discontinuity is established between the source and the portion of the surface water within 1 mile of the source (see section 3.0.1.2.2). However, if hazardous substances have migrated across an apparent discontinuity within this 1 mile distance, do not consider a discontinuity present in scoring the site.
• The top of the uppermost aquifer is at or above the bottom of the surface water.
Do not evaluate this component for sites consisting solely of contaminated sediments with no identified source.
4.2.1.2
• Restrict the ground water segment to migration via the uppermost aquifer between a source and the surface water.
• Begin the surface water in-water segment at the probable point of entry from the uppermost aquifer to the surface water. Identify the probable point of entry as that point of the surface water that yields the shortest straight-line distance, within the aquifer boundary (see section 3.0.1.2), from the sources at the site with a containment factor value greater than 0 to the surface water.
-For rivers, continue the in-water segment in the direction of flow (including any tidal flows) for the distance established by the target distance limit (see section 4.2.1.4).
-For lakes, oceans, coastal tidal waters, or Great Lakes, do not consider flow direction. Instead apply the target distance limit as an arc.
-If the in-water segment includes both rivers and lakes (or oceans, coastal tidal waters, or Great Lakes), apply the target distance limit to their combined in-water segments.
Consider a site to be in two or more watersheds for this component if two or more hazardous substance migration paths from the sources at the site do not reach a common point within the target distance limit. If the site is in more than one watershed, define a separate hazardous substance migration path for each watershed. Evaluate the ground water to surface water migration component for each watershed separately as specified in section 4.2.1.5.
4.2.1.3
If the hazardous substance meets the section 4.1.2.1.1 criteria for an observed release by chemical analysis to surface water but does not also meet the criteria for an observed release to ground water, do not use any samples of that hazardous substance from the surface water in-water segment in evaluating the factors of this component (for example, do not use the hazardous substance in establishing targets subject to actual contamination or in determining the level of actual contamination for a target).
4.2.1.4
Determine the targets eligible to be evaluated for each watershed and establish whether these targets are subject to actual or potential contamination as specified in section 4.1.1.2, except: do not establish actual contamination based on a sample location unless at least one hazardous substance in a sample from that location meets the criteria in section 4.2.1.3 for an observed release to the surface water in-water segment.
4.2.1.5
Determine the ground water to surface water migration component score (S
If the site is in only one watershed, assign the ground water to surface water migration component score for that watershed as the ground water to surface water migration component score for the site.
If the site is in more than one watershed:
• Calculate a separate ground water to surface water migration component score for each watershed, using likelihood of release, waste characteristics, and targets applicable to each watershed.
• Select the highest ground water to surface water migration component score from the watersheds evaluated and assign it as the ground water to surface water migration component score for the site.
4.2.2
4.2.2.1
4.2.2.1.1
4.2.2.1.2
4.2.2.1.3
4.2.2.2
• Hazardous substances that meet the criteria for an observed release to ground water.
• All hazardous substances associated with a source that has a ground water containment factor value greater than 0 (see sections 2.2.2, 2.2.3, and 3.1.2.1).
4.2.2.2.1
4.2.2.2.1.1
4.2.2.2.1.2
4.2.2.2.1.3
4.2.2.2.1.4
4.2.2.2.2
4.2.2.2.3
4.2.2.3
For the nearest intake and population factors, determine whether the target surface water intakes are subject to actual or potential contamination as specified in section 4.1.1.2, subject to the restrictions specified in sections 4.2.1.3 and 4.2.1.4.
When the intake is subject to actual contamination, evaluate it using Level I concentrations or Level II concentrations. Determine which level applies for the intake by comparing the exposure concentrations from a sample (or comparable samples) to health-based benchmarks as specified in section 4.1.2.3, except use only those samples from the surface water in-water segment and only those hazardous substances in such samples that meet the conditions in sections 4.2.1.3 and 4.2.1.4.
4.2.2.3.1
Select the value from table 4-27 based on the angle Θ, the angle defined by the sources at the site and either the two points at the intersection of the surface water body and the 1-mile distance ring of any two other points of the surface water body within the 1-mile distance ring, whichever results in the largest angle. (See Figure 4-3 for an example of how to determine Θ.) If the surface water body does not extend to the 1-mile ring at one or both ends, define Θ using the surface water endpoint(s) within the 1-mile ring or any two other points of the surface water body within the 1-mile distance ring, whichever results in the largest angle.
4.2.2.3.2
4.2.2.3.2.1
4.2.2.3.2.2
4.2.2.3.2.3
Calculate the value for the potential contamination factor (PC) for the watershed as follows:
If PC is less than 1, do not round it to the nearest integer; if PC is 1 or more, round to the nearest integer. Enter the value in table 4-25.
4.2.2.3.2.4
4.2.2.3.3
4.2.2.3.4
4.2.2.4
4.2.3
4.2.3.1
4.2.3.2
4.2.3.2.1
4.2.3.2.1.1
4.2.3.2.1.2
4.2.3.2.1.3
4.2.3.2.1.4
4.2.3.2.1.5
4.2.3.2.2
4.2.3.2.3
4.2.3.3
For both factors, determine whether the target fisheries are subject to Level I concentrations, Level II concentrations, or potential human food chain contamination. Determine which applies to each fishery (or portion of a fishery) as specified in section 4.1.3.3, subject to the restrictions specified in sections 4.2.1.3 and 4.2.1.4.
4.2.3.3.1
4.2.3.3.2
4.2.3.3.2.1
4.2.3.3.2.2
4.2.3.3.2.3
4.2.3.3.2.4
4.2.3.3.3
4.2.3.4
4.2.4
4.2.4.1
4.2.4.2
4.2.4.2.1
4.2.4.2.1.1
4.2.4.2.1.2
4.2.4.2.1.3
4.2.4.2.1.4
4.2.4.2.1.5
4.2.4.2.2
4.2.4.2.3
4.2.4.3
4.2.4.3.1
4.2.4.3.1.1
4.2.4.3.1.2
4.2.4.3.1.3
4.2.4.3.1.4
4.2.4.4
4.2.5
4.2.6
4.3
• If only one of the two surface water migration components (overland/flood or ground water to surface water) is scored, assign the score of that component as the surface water migration pathway score.
• If both components are scored, select the higher of the two component scores from sections 4.1.6 and 4.2.6. Assign that score as the surface water migration pathway score.
Evaluate the soil exposure pathway based on two threats: Resident population threat and nearby population threat. Evaluate both threats based on three factor categories: Likelihood of exposure, waste characteristics, and targets. Figure 5-1 indicates the factors included within each factor category for each type of threat.
Determine the soil exposure pathway score (S
Table 5-1 outlines the specific calculation procedure.
5.0.1
• Consider observed contamination to be present at sampling locations where analytic evidence indicates that:
-A hazardous substance attributable to the site is present at a concentration significantly above background levels for the site (see table 2-3 in section 2.3 for the criteria for determining analytical significance),
-This hazardous substance, if not present at the surface, is covered by 2 feet or less of cover material (for example, soil).
• Establish areas of observed contamination based on sampling locations at which there is observed contamination as follows:
-For all sources except contaminated soil, if observed contamination from the site is present at any sampling location within the source, consider that entire source to be an area of observed contamination.
-For contaminated soil, consider both the sampling location(s) with observed contamination from the site and the area lying between such locations to be an area of observed contamination, unless available information indicates otherwise.
• If an area of observed contamination (or portion of such an area) is covered by a permanent, or otherwise maintained, essentially impenetrable material (for example, asphalt) that is not more than 2 feet thick, exclude that area (or portion of the area) in evaluating the soil exposure pathway.
• For an area of observed contamination, consider only those hazardous substances that meet the criteria for observed contamination for that area to be associated with that area in evaluating the soil exposure pathway (see section 2.2.2).
If there is observed contamination, assign scores for the resident population threat and the nearby population threat, as specified in sections 5.1 and 5.2. If there is no observed contamination, assign the soil exposure pathway a score of 0.
5.1
• Within the property boundary of a residence, school, or day care center
• Within a workplace property boundary
• Within the boundaries of a resource specified in section 5.1.3.4, or
• Within the boundaries of a terrestrial sensitive environment specified in section 5.1.3.5.
If not, assign the resident population threat a value of 0, enter this value in table 5-1, and proceed to the nearby population threat (section 5.2).
5.1.1
5.1.2
5.1.2.1
5.1.2.2
• Consider only the first 2 feet of depth of an area of observed contamination, except as specified for the volume measure.
• Use the volume measure (see section 2.4.2.1.3) only for those types of areas of observed contamination listed in Tier C of table 5-2. In evaluating the volume measure for these listed areas of observed contamination, use the full volume, not just the volume within the top 2 feet.
• Use the area measure (see section 2.4.2.1.4), not the volume measure, for all other types of areas of observed contamination, even if their volume is known.
Enter the value assigned in table 5-1.
5.1.2.3
5.1.3
In evaluating the targets factor category for the resident population threat, count only the following as targets:
• Resident individual—a person living or attending school or day care on a property with an area of observed contamination
• Worker—a person working on a property with an area of observed contamination
• Resources located on an area of observed contamination, as specified in section 5.1.
• Terrestrial sensitive environments located on an area of observed contamination, as specified in section 5.1.
5.1.3.1
First, determine those areas of observed contamination subject to Level I concentrations and those subject to Level II concentrations as specified in sections 2.5.1 and 2.5.2. Use the health-based benchmarks from table 5-3 in determining the level of contamination. Then assign a value to the resident individual factor as follows:
• Assign a value of 50 if there is at least one resident individual for one or more areas subject to Level I concentrations.
• Assign a value of 45 if there is no such resident individuals, but there is at least one resident individual for one or more areas subject to Level II concentrations.
• Assign a value of 0 if there is no resident individual.
Enter the value assigned in table 5-1.
5.1.3.2
• Screening concentration for cancer corresponding to that concentration that corresponds to the 10
• Screening concentration for noncancer toxicological responses corresponding to the Reference Dose (RfD) for oral exposures.
Count only those persons meeting the criteria for resident individual as specified in section 5.1.3. In estimating the number of people living on property with an area of observed contamination, when the estimate in based on the number of residences, multiply each residence by the average number of persons per residence for the county in which the residence is located.
5.1.3.2.1
5.1.3.2.2
5.1.3.2.3
5.1.3.3
5.1.3.4
• Assign a value of 5 to the resources factor if one or more of the following is present on an area of observed contamination at the site:
-Commercial agriculture.
-Commercial silviculture.
-Commercial livestock production or commercial livestock grazing.
• Assign a value of 0 if none of the above are present.
Enter the value assigned in table 5-1.
5.1.3.5
Calculate a value (ES) for terrestrial sensitive environments as follows:
Because the pathway score based solely on terrestrial sensitive environments is limited to a maximum of 60, determine the value for the terrestrial sensitive environments factor as follows:
• Multiply the values assigned to the resident population threat for likelihood of exposure (LE), waste characteristics (WC), and ES. Divide the product by 82,500.
-If the result is 60 or less, assign the value ES as the terrestrial sensitive environments factor value.
-If the result exceeds 60, calculate a value EC as follows:
Enter the value assigned for the terrestrial sensitive environments factor in table 5-1.
5.1.3.6
5.1.4
5.2
Do not consider areas of observed contamination that have an attractiveness/accessibility factor value of 0 (see section 5.2.1.1) in evaluating the nearby population threat.
5.2.1
5.2.1.1.
5.2.1.2
5.2.1.3
5.2.2
5.2.2.1
5.2.2.2
5.2.2.3
5.2.3
5.2.3.1
If no person meets the criteria for a resident individual, determine the shortest travel distance from the site to any residence or school. In determining the travel distance, measure the shortest overland distance an individual would travel from a residence or school to the nearest area of observed contamination for the site with an attractiveness/accessibility factor value greater than 0. If there are no natural barriers to travel, measure the travel distance as the shortest straight-line distance from the residence or school to the area of observed contamination. If natural barriers exist (for example, a river), measure the travel distance as the shortest straight-line distance from the residence or school to the nearest crossing point and from there as the shortest straight-line distance to the area of observed contamination. Based on the shortest travel distance, assign a value from table 5-9 to the nearest individual factor. Enter this value in table 5-1.
5.2.3.2
In estimating residential population, when the estimate is based on the number of residences, multiply each residence by the average number of persons per residence for the county in which the residence is located.
Based on the number of people included within a travel distance category, assign a distance-weighted population value for that travel distance from table 5-10.
Calculate the value for the population within 1 mile factor (PN) as follows:
If PN is less than 1, do not round it to the nearest integer; if PN is 1 or more, round to the nearest integer. Enter this value in table 5-1.
5.2.3.3
5.2.4
5.3
Evaluate the air migration pathway based on three factor categories: likelihood of release, waste characteristics, and targets. Figure 6-1 indicates the factors included within each factor category.
Determine the air migration pathway score (S
Table 6-1 outlines the specific calculation procedure.
6.1
6.1.1
• Direct observation—a material (for example, particulate matter) that contains one or more hazardous substances has been seen entering the atmosphere directly. When evidence supports the inference of a release of a material that contains one or more hazardous substances by the site to the atmosphere, demonstrated adverse effects accumulated with that release may be used to establish an observed release.
• Chemical analysis—an analysis of air samples indicates that the concentration of ambient hazardous substance(s) has increased significantly above the background concentration for the site (see section 2.3). Some portion of the significant increase must be attributable to the site to establish the observed release.
If an observed release can be established, assign an observed release factor value of 550, enter this value in table 6-1, and proceed to section 6.1.3. If an observed release cannot be established, assign an observed release factor value of 0, enter this value in table 6-1, and proceed to section 6.1.2.
6.1.2
6.1.2.1
Evaluate gas potential to release for each source based on three factors: gas containment, gas source type, and gas migration potential. Calculate the gas potential to release value as illustrated in table 6-2. Combine sources with similar characteristics into a single source in evaluating the gas potential to release factors.
6.1.2.1.1
6.1.2.1.2
• Determine if the source meets the minimum size requirement based on the source hazardous waste quantity value (see section 2.4.2.1.5). If the source receives a source hazardous waste quantity value of 0.5 or more, consider the source to meet the minimum size requirement.
• If the source meets the minimum size requirement, assign it a value from table 6-4 for gas source type.
• If the source does not meet the minimum size requirement, assign it a value of 0 for gas source type.
If no source at the site meets the minimum size requirement, assign each source at the
6.1.2.1.3
• Assign a value for gas migration potential to each of the gaseous hazardous substances associated with the source (see section 2.2.2) as follows:
-Assign values from table 6-5 for vapor pressure and Henry's constant to each hazardous substance. If Henry's constant cannot be determined for a hazardous substance, assign that hazardous substance a value of 2 for the Henry's constant component.
-Sum the two values assigned to the hazardous substance.
-Based on this sum, assign the hazardous substance a value from table 6-6 for gas migration potential.
• Assign a value for gas migration potential to each source as follows:
-Select three hazardous substances associated with the source:
-Average the gas migration potential values assigned to the selected hazardous substances.
-Based on this average value, assign the source a gas migration potential value from table 6-7.
6.1.2.1.4
6.1.2.2
Evaluate particulate potential to release for each source based on three factors: particulate containment, particulate source type, and particulate migration potential.
6.1.2.2.1
6.1.2.2.2
6.1.2.2.3
For site locations not on Figure 6-2, and for site locations near the boundary points on Figure 6-2, assign a value as follows. First, calculate a Thornthwaite P-E index using the following equation:
6.1.2.2.4
6.1.2.3
6.1.3
6.2
• Hazardous substances that meet the criteria for an observed release to the atmosphere.
• All gaseous hazardous substances associated with a source that has a gas containment factor value greater than 0 (see section 2.2.2, 2.2.3, and 6.1.2.1.1).
• All particulate hazardous substances associated with a source that has a particulate
6.2.1
6.2.1.1
6.2.1.2
• Gaseous hazardous substance.
-Assign a mobility factor value of 1 to each gaseous hazardous substance that meets the criteria for an observed release to the atmosphere.
-Assign a mobility factor value from table 6-11, based on vapor pressure, to each gaseous hazardous substance that does not meet the criteria for an observed release.
• Particulate hazardous substance.
-Assign a mobility factor value of 0.02 to each particulate hazardous substance that meets the criteria for an observed release to the atmosphere.
-Assign a mobility factor value from Figure 6-3, based on the site's location, to each particulate hazardous substance that does not meet the criteria for an observed release. (Assign all such particulate hazardous substances this same value.)
-For site locations not on Figure 6-3 and for site locations near the boundary points on Figure 6-3, assign a mobility factor value to each particulate hazardous substance that does not meet the criteria for an observed release as follows:
• Gaseous and particulate hazardous substances.
-For a hazardous substance potentially present in both gaseous and particulate forms, select the higher of the factor values for gas mobility and particulate mobility for that substance and assign that value as the mobility factor value for the hazardous substance.
6.2.1.3
6.2.2
6.2.3
6.3
Evaluate the targets factor category based on four factors: nearest individual, population, resources, and sensitive environments. Include only those targets (for example, individuals, sensitive environments) located within the 4-mile target distance limit, except: if an observed release is established beyond the 4-mile target distance limit, include those additional targets that are specified below in this section and in section 6.3.4.
Evaluate the nearest individual and population factors based on whether the target populations are subject to Level I concentrations, Level II concentrations, or potential contamination. Determine which applies to a target population as follows.
If no samples meet the criteria for an observed release to air and if there is no observed release by direct observation, consider the entire population within the 4-mile target distance limit to be subject to potential contamination.
If one or more samples meet the criteria for an observed release to air or if there is an observed release by direct observation, evaluate the population as follows:
• Determine the most distant sample location that meets the criteria for Level I concentrations as specified in sections 2.5.1 and 2.5.2 and the most distant location (that is, sample location or direct observation location) that meets the criteria for Level II concentrations. Use the health-based benchmarks from table 6-14 in determining the level of contamination for sample locations. If the most distant Level II location is closer to a source than the most distant Level I sample location, do not consider the Level II location.
• Determine the single most distant location (sample location or direct observation location) that meets the criteria for Level I or Level II concentrations.
• If this single most distant location is within the 4-mile target distance limit, identify the distance categories from table -6-15 in which the selected Level I concentrations sample and Level II concentrations sample (or direct observation location) are located:
-Consider the target population anywhere within this furthest Level I distance category, or anywhere within a distance category closer to a source at the site, as subject to Level I concentrations.
-Consider the target population located beyond any Level I distance categories, up to and including the population anywhere within the furthest Level II distance category, as subject to Level II concentrations.
-Consider the remainder of the target population within the 4-mile target distance limit as subject to potential contamination.
• If the single most distant location is beyond the 4-mile target distance limit, identify the distance at which the selected Level I concentrations sample and Level II concentrations sample (or direct observation location) are located:
-If the Level I sample location is within the 4-mile target distance limit, identify the target population subject to Level I concentrations as specified above.
-If the Level I sample location is beyond the 4-mile target distance limit, consider the target population located anywhere within a distance from the sources at the site equal to the distance to this sample location to be subject to Level I concentrations and include them in the evaluation.
-Consider the target population located beyond the Level I target population, but located anywhere within a distance from the sources at the site equal to the distance to the selected Level II location, to be subject to Level II concentrations and include them in the evaluation.
-Do not include any target population as subject to potential contamination.
6.3.1
• If one or more residences or regularly occupied buildings or areas is subject to Level I concentrations as specified in section 6.3, assign a value of 50.
• If not, but if one or more a residences or regularly occupied buildings or areas is subject to Level II concentrations, assign a value of 45.
• If none of the residences and regularly occupied buildings and areas is subject to Level I or Level II concentrations, assign a value to this factor based on the shortest distance to any residence or regularly occupied building or area, as measured from any source at the site with an air migration containment factor value greater than 0. Based on this shortest distance, assign a value from table 6-16 to the nearest individual factor.
Enter the value assigned in table 6-1.
6.3.2
In estimating residential population, when the estimate is based on the number of residences, multiply each residence by the average number of persons per residence for the county in which the residence is located.
6.3.2.1
Evaluate the population subject to Level I concentrations (see section 6.3) as specified in section 6.3.2.2, the population subject to Level II concentrations as specified in section 6.3.2.3, and the population subject to potential contamination as specified in section 6.3.2.4.
For the potential contamination factor, use population ranges in evaluating the factor as specified in section 6.3.2.4. For the Level I and Level II concentrations factors, use the population estimate, not population ranges, in evaluating both factors.
6.3.2.2
6.3.2.3
6.3.2.4
Based on the number of people present within a distance category, assign a distance-weighted population value for that distance category from table 6-17. (Note that the distance-weighted population values in table 6-17 incorporate the distance weights from table 6-15. Do not multiply the values from table 6-17 by these distance weights.)
Calculate the potential contamination factor value (PI) as follows:
If PI is less than 1, do not round it to the nearest integer; if PI is 1 or more, round to the nearest integer. Enter this value in table 6-1.
6.3.2.5
6.3.3
• Assign a value of 5 if one or more of the following resources are present within one-half mile of a source at the site having an air migration containment factor value greater than 0:
-Commercial agriculture.
-Commercial silviculture.
-Major or designated recreation area.
• Assign a value of 0 if none of these resources is present.
Enter the value assigned in table 6-1.
6.3.4
If no samples meet the criteria for an observed release to air and if there is no observed release by direct observation, consider all sensitive environments located, partially or wholly, within the target distance limit to be subject to potential contamination.
If one or more samples meet the criteria for an observed release to air or if there is an observed release by direct observation, determine the most distant location (that is, sample location or direct observation location) that meets the criteria for an observed release:
• If the most distant location meeting the criteria for an observed release is within the 4-mile target distance limit, identify the distance category from table 6-15 in which it is located:
-Consider sensitive environments located, partially or wholly, anywhere within this distance category or anywhere within a distance category closer to a source at the site as subject to actual contamination.
-Consider all other sensitive environments located, partially or wholly, within the target distance limit as subject to potential contamination.
• If the most distant location meeting the criteria for an observed release is beyond the 4-mile target distance limit, identify the distance at which it is located:
-Consider sensitive environments located, partially or wholly, anywhere within a distance from the sources at the site equal to the distance to this location to be subject to actual contamination and include all such sensitive environments in the evaluation.
-Do not include any sensitive environments as subject to potential contamination.
6.3.4.1
For those sensitive environments that are wetlands, assign an additional value from table 6-18. In assigning a value from table 6-18, include only those portions of wetlands located within distance categories subject to actual contamination. If a wetland is located partially in a distance category subject to actual contamination and partially in one subject to potential contamination, then solely for purposes of table 6-18, count the portion in the distance category subject to potential contamination under the potential contamination factor in section 6.3.4.2. Determine the total acreage of wetlands within those distance categories subject to actual contamination and assign a value from table 6-18 based on this total acreage.
Calculate the actual contamination factor value (EA) as follows:
Enter the value assigned in table 6-1.
6.3.4.2
For each distance category subject to potential contamination, sum the value(s) assigned from table 4-23 to the sensitive environments in that distance category. If a sensitive environment is located in more than one distance category, assign the sensitive
For those sensitive environments that are wetlands, assign an additional value from table 6-18. In assigning a value from table 6-18, include only those portions of wetlands located within distance categories subject to potential contamination, as specified in section 6.3.4.1. Treat the wetlands in each separate distance category as separate sensitive environments solely for purposes of applying table 6-18. Determine the total acreage of wetlands within each of these distance categories and assign a separate value from table 6-18 for each distance category.
Calculate the potential contamination factor value (EP) as follows:
If EP is less than 1, do not round it to the nearest integer; if EP is 1 or more, round to the nearest integer. Enter the value assigned in table 6-1.
6.3.4.3
Because the pathway score based solely on sensitive environments is limited to a maximum of 60, use the value EB to determine the value for the sensitive environments factor as follows:
• Multiply the values assigned to likelihood of release (LR), waste characteristics (WC), and EB. Divide the product by 82,500.
-If the result is 60 or less, assign the value EB as the sensitive environments factor value.
-If the result exceeds 60, calculate a value EC as follows:
Enter the value assigned for the sensitive environments factor in table 6-1.
6.3.5
6.4
In general, radioactive substances are hazardous substances under CERCLA and should be considered in HRS scoring. Releases of certain radioactive substances are, however, excluded from the definition of “release” in section 101(22) of CERCLA, as amended, and should not be considered in HRS scoring.
Evaluate sites containing radioactive substances using the instructions specified in sections 2 through 6, supplemented by the instructions in this section. Those factors denoted with a “yes” in table 7-1 are evaluated differently for sites containing radioactive substances than for sites containing only nonradioactive hazardous substances, while those denoted with a “no” are not evaluated differently and are not addressed in this section.
In general, sites containing mixed radioactive and other hazardous substances involve more evaluation than sites containing only radionuclides. For sites containing mixed radioactive and other hazardous substances, HRS factors are evaluated based on considerations of both the radioactive substances and the other hazardous substances in order to derive a single set of factor values for each factor category in each of the four pathways. Thus, the HRS score for these sites reflects the combined potential hazards posed by both the radioactive and other hazardous substances.
Section 7 is organized by factor category, similar to sections 3 through 6. Pathway-specific differences in evaluation criteria are specified under each factor category, as appropriate. These differences apply largely to the soil exposure pathway and to sites containing mixed radioactive and other hazardous substances. All evaluation criteria specified in sections 2 through 6 must be met, except where modified in section 7.
7.1
7.1.1
• Direct observation:
-For each migration pathway, a material that contains one or more radionuclides has been seen entering the atmosphere, surface water, or ground water, as appropriate, or is known to have entered ground water or surface water through direct deposition, or
-For the surface water migration pathway, a source area containing radioactive substances has been flooded at a time that radioactive substances were present and one or more radioactive substances were in contact with the flood waters.
• Analysis of radionuclide concentrations in samples appropriate to the pathway (that is, ground water, soil, air, surface water, benthic, or sediment samples):
-For radionuclides that occur naturally and for radionuclides that are ubiquitous in the environment:
-For man-made radionuclides without ubiquitous background concentrations in the environment:
• Gamma radiation measurements (applies only to observed contamination for the soil exposure pathway):
-The gamma radiation exposure rate, as measured in microroentgens per hour (µR/hr) using a survey instrument held 1 meter above the ground surface (or 1 meter away from an aboveground source), equals or exceeds 2 times the site-specific background gamma radiation exposure rate.
-Some portion of the increase must be attributable to the site to establish observed contamination. The gamma-emitting radionuclides do not have to be within 2 feet of the surface of the source.
For the three migration pathways, if an observed release can be established for the pathway (or aquifer or watershed, as appropriate), assign the pathway (or aquifer or watershed) an observed release factor value of 550 and proceed to section 7.2. If an observed release cannot be established, assign an observed release factor value of 0 and proceed to section 7.1.2.
For the soil exposure pathway, if observed contamination can be established, assign the likelihood of exposure factor for resident population a value of 550 if there is an area of observed contamination in one or more locations listed in section 5.1; evaluate the likelihood of exposure factor for nearby population as specified in section 5.2.1; and proceed to section 7.2. If observed contamination cannot be established, do not evaluate the soil exposure pathway.
At sites containing mixed radioactive and other hazardous substances, evaluate observed release (or observed contamination) separately for radionuclides as described in this section and for other hazardous substances as described in sections 2 through 6.
For the three migration pathways, if an observed release can be established based on either radionuclides or other hazardous substances, or both, assign the pathway (or aquifer or watershed) an observed release factor value of 550 and proceed to section 7.2. If an observed release cannot be established based on either radionuclides or other hazardous substances, assign an observed release factor value of 0 and proceed to section 7.1.2.
For the soil exposure pathway, if observed contamination can be established based on either radionuclides or other hazardous substances, or both, assign the likelihood of exposure factor for resident population a value of 550 if there is an area of observed contamination in one or more locations listed in section 5.1; evaluate the likelihood of exposure factor for nearby population as specified in section 5.2.1; and proceed to section 7.2. If observed contamination cannot be established based on either radionuclides or other hazardous substances, do not evaluate the soil exposure pathway.
7.1.2
For sites containing mixed radioactive and other hazardous substances, evaluate potential to release considering radionuclides and other hazardous substances together. Evaluate potential to release for each migration pathway as specified in sections 3, 4, or 6, as appropriate.
7.2
7.2.1
Assign human toxicity factor values to those radionuclides available to the pathway based on quantitative dose-response parameters for cancer risks as follows:
• Evaluate radionuclides only on the basis of carcinogenicity and assign all radionuclides to weight-of-evidence category A.
• Assign a human toxicity factor value from table 7-2 to each radionuclide based on its slope factor (also referred to as cancer potency factor).
-For each radionuclide, use the higher of the slope factors for inhalation and ingestion to assign the factor value.
-If only one slope factor is available for the radionuclide, use it to assign the toxicity factor value.
-If no slope factor is available for the radionuclide, assign that radionuclide a toxicity factor value of 0 and use other radionuclides for which a slope factor is available to evaluate the pathway.
• If all radionuclides available to a particular pathway are assigned a human toxicity factor value of 0 (that is, no slope factor is available for all the radionuclides), use a default human toxicity factor value of 1,000 as the human toxicity factor value for all radionuclides available to the pathway.
At sites containing mixed radioactive and other hazardous substances, evaluate the toxicity factor separately for the radioactive and other hazardous substances and assign each a separate toxicity factor value. This applies regardless of whether the radioactive and other hazardous substances are physically separated, combined chemically, or simply mixed together. Assign toxicity factor values to the radionuclides as specified above and to the other hazardous substances as specified in section 2.4.1.1.
At sites containing mixed radioactive and other hazardous substances, if all radionuclides available to a particular pathway
At sites containing mixed radioactive and other hazardous substances, evaluate the ecosystem toxicity factor separately for the radioactive and other hazardous substances and assign each a separate ecosystem toxicity factor value. This applies regardless of whether the radioactive and other hazardous substances are physically separated, combined chemically, or simply mixed together. Assign ecosystem toxicity factor values to the radionuclides as specified above and to the other hazardous substances as specified in sections 4.1.4.2.1.1 and 4.2.4.2.1.1. If all radionuclides available to a particular pathway are assigned an ecosystem toxicity factor value of 0, use a default ecosystem toxicity factor value of 100 for all these radionuclides even if nonradioactive hazardous substances available to the pathway are assigned ecosystem toxicity factor values greater than 0. Similarly, if all nonradioactive hazardous substances available to the pathway are assigned an ecosystem toxicity factor value of 0, use a default ecosystem toxicity factor value of 100 for all these nonradioactive hazardous substances even if radionuclides available to the pathway are assigned ecosystem toxicity factor values greater than 0.
7.2.3
If the volatilization half-life cannot be estimated for a radionuclide from available data, delete it from the equation. Select the portion of table 4-10 to use in assigning the persistence factor value as specified in section 4.1.2.2.1.2.
At sites containing mixed radioactive and other hazardous substances, evaluate the persistence factor separately for each radionuclide and for each nonradioactive hazardous substance, even if the available data indicate that they are combined chemically. Assign a persistence factor value to each radionuclide as specified in this section and to each nonradioactive hazardous substance as specified in section 4.1.2.2.1.2. When combined chemically, assign a single persistence factor value based on the higher of the two values assigned (individually) to the radioactive and nonradioactive components.
7.2.4
7.2.5
• Radionuclide constituent quantity (Tier A).
• Radionuclide wastestream quantity (Tier B).
7.2.5.1
7.2.5.1.1
• Estimate the net activity content (in curies) for the source (or area of observed contamination) based on:
-Manifests, or
-Either of the following equations, as applicable:
•Convert from curies of radionuclides to equivalent pounds of nonradioactive hazardous substances by multiplying the activity estimate for the source (or area of observed contamination) by 1,000.
•Assign this resulting product as the radionuclide constituent quantity value for the source (or area of observed contamination).
If the radionuclide constituent quantity for the source (or area of observed contamination) is adequately determined (that is, the total activity of all radionuclides in the source and releases from the source [or in the area of observed contamination] is known or is estimated with reasonable confidence), do not evaluate the radionuclide wastestream quantity measure in section 7.2.5.1.2. Instead, assign radionuclide wastestream quantity a value of 0 and proceed to section 7.2.5.1.3. If the radionuclide constituent quantity is not adequately determined, assign the source (or area of observed contamination) a value for radionuclide constituent quantity based on the available data and proceed to section 7.2.5.1.2.
7.2.5.1.2
•Estimate the total volume (in cubic yards or in gallons) of wastestreams containing radionuclides allocated to the source (or area of observed contamination).
•Divide the volume in cubic yards by 0.55 (or the volume in gallons by 110) to convert to the activity content expressed in terms of equivalent pounds of nonradioactive hazardous substances.
•Assign the resulting value as the radionuclide wastestream quantity value for the source (or area of observed contamination).
7.2.5.1.3
7.2.5.2
For a migration pathway, if the radionuclide constituent quantity is adequately determined (see section 7.2.5.1.1) for all sources (or all portions of sources and releases remaining after a removal action), assign the value from table 2-6 as the hazardous waste quantity factor value for the pathway. If the radionuclide constituent quantity is not adequately determined for one or more sources (or one or more portions of sources or releases remaining after a removal action), assign a factor value as follows:
•If any target for that migration pathway is subject to Level I or Level II concentrations (see section 7.3), assign either the value from table 2-6 or a value of 100, whichever is greater, as the hazardous waste quantity factor value for that pathway.
•If none of the targets for that pathway is subject to Level I or Level II concentrations, assign a factor value as follows:
-If there has been no removal action, assign either the value from table 2-6 or a value of 10, whichever is greater, as the hazardous waste quantity factor value for that pathway.
-If there has been a removal action:
For the soil exposure pathway, if the radionuclide constituent quantity is adequately determined for all areas of observed contamination, assign the value from table 2-6 as the hazardous waste quantity factor value. If the radionuclide constituent quantity is not adequately determined for one or more areas of observed contamination, assign either the value from table 2-6 or a value of 10, whichever is greater, as the hazardous waste quantity factor value.
7.2.5.3
Use this combined source hazardous waste quantity value to calculate the hazardous waste quantity factor value for the pathway as specified in section 2.4.2.2, except: if either the hazardous constituent quantity or the radionuclide constituent quantity, or both, are not adequately determined for one or more sources (or one or more portions of sources or releases remaining after a removal action) or for one or more areas of observed contamination, as applicable, assign the value from table 2-6 or the default value applicable for the pathway, whichever is greater, as the hazardous waste quantity factor value for the pathway.
7.3
For all pathways (and threats), use the same target distance limits for sites containing radioactive substances as is specified in sections 3 through 6 for sites containing nonradioactive hazardous substances. At sites containing mixed radioactive and other hazardous substances, include all sources (or areas of observed contamination) at the site in identifying the applicable targets for the pathway.
7.3.1
• Select the benchmarks from section 7.3.2 applicable to the pathway (or threat) being evaluated.
• Compare the concentrations of radionuclides in the sample (or comparable samples) to their benchmark concentrations for the pathway (or threat) as specified in section 7.3.2. Treat comparable samples as specified in section 2.5.1.
• Determine which level applies based on this comparison.
• If none of the radionuclides eligible to be evaluated for the sampling location have an
• In making the comparison, consider only those samples, and only those radionuclides in the sample, that meet the criteria for an observed release (or observed contamination) for the pathway, except: tissue samples from aquatic human food chain organisms may also be used for the human food chain threat of the surface water pathway as specified in sections 4.1.3.3 and 4.2.3.3.
7.3.2
• Maximum Contaminant Levels (MCLs)—ground water migration pathway and drinking water threat in surface water migration pathway.
• Uranium Mill Tailings Radiation Control Act (UMTRCA) standards—soil exposure pathway only.
• Screening concentration for cancer corresponding to that concentration that corresponds to the 10
-For the soil exposure pathway, include two screening concentrations for cancer—one for ingestion of surface materials and one for external radiation exposures from gamma-emitting radionuclides in surface materials.
Select the benchmark(s) applicable to the pathway (or threat) being evaluated. Compare the concentration of each radionuclide from the sampling location to its benchmark concentration(s) for that pathway (or threat). Use only those samples and only those radionuclides in the sample that meet the criteria for an observed release (or observed contamination) for the pathway, except: tissue samples from aquatic human food chain organisms may be used as specified in sections 4.1.3.3 and 4.2.3.3. If the concentration of any applicable radionuclide from any sample equals or exceeds its benchmark concentration, consider the sampling location to be subject to Level I concentrations for that pathway (or threat). If more than one benchmark applies to the radionuclide, assign Level I if the radionuclide concentration equals or exceeds the lowest applicable benchmark concentration. In addition, for the soil exposure pathway, assign Level I concentrations at the sampling location if measured gamma radiation exposure rates equal or exceed 2 times the background level (see section 7.1.1).
If no radionuclide individually equals or exceeds its benchmark concentration, but more than one radionuclide either meets the criteria for an observed release (or observed contamination) for the sample or is eligible to be evaluated for a tissue sample (see sections 4.1.3.3 and 4.2.3.3), calculate a value for index I for these radionuclides as specified in section 2.5.2. If I equals or exceeds 1, assign Level I to the sampling location. If I is less than 1, assign Level II.
At sites containing mixed radioactive and other hazardous substances, establish the level of contamination for each sampling location considering radioactive substances and nonradioactive hazardous substances separately. Compare the concentration of each radionuclide and each nonradioactive hazardous substance from the sampling location to its respective benchmark concentration(s). Use only those samples and only those substances in the sample that meet the criteria for an observed release (or observed contamination) for the pathway except: tissue samples from aquatic human food chain organisms may be used as specified in sections 4.1.3.3 and 4.2.3.3. If the concentration of one or more applicable radionuclides or other hazardous substances from any sample equals or exceeds its benchmark concentration, consider the sampling location to be subject to Level I concentrations. If more than one benchmark applies to a radionuclide or other hazardous substance, assign Level I if the concentration of the radionuclide or other hazardous substance equals or exceeds its lowest applicable benchmark concentration.
If no radionuclide or other hazardous substance individually exceed a benchmark concentration, but more than one radionuclide or other hazardous substance either meets the criteria for an observed release (or observed contamination) for the sample or is eligible to be evaluated for a tissue sample, calculate an index I for both types of substances as specified in section 2.5.2. Sum the index I values for the two types of substances. If the value, individually or combined, equals or exceeds 1, assign Level I to the sample location. If it is less than 1, calculate an index J for the nonradioactive hazardous substances as specified in section 2.5.2. If J equals or exceeds 1, assign Level I to the sampling location. If J is less than 1, assign Level II.
For
At 71 FR 36019, June 23, 2006, the amendment to Table 1 of Appendix B to Part 300 could not be incorporated because of inaccurate amendatory language.
At 74 FR 26965, June 5, 2009, table 1 of appendix b to part 300 was amended by removing “Callaway & Son Drum Service”, “Lake Alfred, Florida.”, effective August 4, 2009.
1.1
1.2
2.1
2.2
2.2.1Modified Erlenmeyer Flask. Use 125-ml glass Erlenmeyer flasks that have been modified to include an attachment of a glass side spout that extends from the bottom of the flask upward to the neck region, as shown in Figure 1.
2.2.2
2.2.3
2.2.4
2.3
2.3.2
2.3.3
2.4
2.4.1.2To prepare the standards, prepare a parent oil-DCM standard by mixing 1 part oil (plus 1/10 part premixed dispersant, if applicable) to 9 parts DCM (
2.4.1.3The quantities of oil used to achieve the desired concentrations in the final 20-ml DCM extracts for the standard oil-solutions are summarized in table 3. Specific masses for oil amounts in standards are determined as volumes of oil multiplied by the density of the oil.
2.4.2
2.4.2.1Before DCM-extracts of dispersed oil-water samples can be analyzed for their oil content, the UV-visible spectrophotometer must meet an instrument stability calibration criterion. This criterion is determined with the six oil standards identified in table 3. Determine the absorbance of standards at each of the three analytical wavelengths (
2.4.2.2Instrument stability for the initial calibration is acceptable when the RFs for the five highest standard extracts of oil are <20% different from the overall mean value for the five standards. If this criterion is satisfied, analysis of sample extracts can begin. RFs for the lowest concentration (0.05 mg oil/ml DCM) are not included in the consideration because the absorbance is close to the detection limit of the spectrophotometer (with associated high variability in the value) for the 1-cm path-length cell used for measurements. Absorbances ≥3.5 are not included because absorbance saturation occurs at and above this value.
2.4.2.3If one or more of the standard oil extracts do not meet this linear-stability criterion, then the “offending” standard(s) can be prepared a second time (
2.4.2.4If the initial-stability criterion is still not satisfied, analysis of sample extract cannot begin and the source of the problem (e.g., preparation protocol for the oil standards, spectrophotometer stability, etc.) must be corrected.
2.4.2.5The initial six-point calibration of the UV-visible spectrophotometer at the oil concentrations identified is required at least once per test day.
2.5
1. Prepare 4 replicates (same test oil and dispersant), one control (
2. Add 120±2 ml of synthetic seawater to each of the modified 125-ml glass Erlenmeyer flasks. Measure and record the water temperature.
3. Place the flasks securely into the attached slot on the shaker table.
4. Carefully add 100 µl of an oil-dispersant solution onto the center of the water's surface using a positive displacement pipette.
5. Agitate the flasks for 20±1 minutes at 150±10 rpm on the shaker table.
6. After the 20±1 minutes shaking, remove the flasks from the shaker table and allow them to remain stationary for 10±1 minutes for oil droplet “settling.”
7. At the conclusion of the 10-minute settling period, carefully decant a 30-ml sample through the side spout of the test flasks into a 50-ml graduated cylinder.
Discard the first 1-2 ml of sample water to remove nonhomogeneous water-oil initially contained in the spout.
8. Transfer the samples from the graduated cylinder into a 125- or 250-ml glass separatory funnel fitted with a Teflon stopcock.
9. Add 5 ml of pesticide-quality DCM to the separatory funnel and shake vigorously for 15 seconds. Release the pressure carefully from the separatory funnel through the stopcock into a fume hood.
10. Allow the funnel to remain in a stationary position for 2 minutes to allow phase-separation of the water and DCM.
11. Drain the DCM layer from the separatory funnel into a glass-stoppered, 25-ml graduated glass cylinder.
12. Repeat the DCM-extraction process two additional times.
13. Combine the three extracts in the graduated cylinder and adjust the final volume to 20-ml with additional DCM.
14. Analyze the samples using a UV-spectrophotometer at 340, 370, and 400 nm-wavelengths and determine the quantity of oil as follows:
15. Obtain three concentration values for oil in each experimental water sample (340, 370, and 400 nm).
16. Determine the mean of three values as follows:
Means will be used for all dispersion-performance calculations. Samples where one of the values for C
17. Determine the dispersant performance (
18. Calculate EFF using equation 4 for coupled experiments with and without dispersant (EFF
19. Calculate the final dispersant performance of a chemical dispersant agent after correcting for natural dispersion using equation 5.
20. Calculate the average dispersant effectiveness value by summing the corrected values (EFF
2.6
2.7
2.7.2
3.1
3.2
3.2.1
3.2.1.1
3.2.1.2
3.2.2
3.2.3
3.3
3.4
3.4.1
3.4.2
3.4.2.1
3.4.2.2
3.4.3
3.4.4
3.4.5
3.4.6
3.4.6.1
3.4.6.2
3.4.7
3.4.7.2
3.4.8
3.4.8.2
3.4.9
3.4.10
3.5
3.5.2
3.5.2.2For the product test solution, add 550 ml of the synthetic seawater to the jar, then with the use of a gas-tight calibrated glass syringe with a Teflon-tipped plunger, add 0.55 ml of the product and mix for 5 seconds.
3.5.2.3For the oil test solution, add 550 ml of the synthetic seawater to the jar. Then with the use of a gas-tight calibrated glass syringe equipped with a Teflon-tipped plunger, add 0.55 ml of the oil and mix for 5 seconds.
3.5.2.4For the oil/product mixture, add 550 ml of the synthetic seawater to the mixing jar. While the blender is in operation, add 0.5 ml of the oil under study with the use of a calibrated syringe with a Teflon-tipper plunger and then 0.05 ml of the product as indicated above. Blend for 5 seconds after addition of product. These additions provide test solutions of the product, oil, and the oil/product mixture at concentrations of 1,000 ppm.
3.5.2.5Immediately after the test solutions are prepared, draw up the necessary amount of test solution with a gas-tight Teflon-tipped glass syringe of appropriate size and dispense into each of the five containers in each series. If the series of five concentrations to be tested are 10, 18, 32, 56, and 100 ppm, the amount of the test solution in the order of the concentrations listed above would be as follows: 10, 18, 32, 56, and 100 ml.
3.5.2.6Each time a syringe is to be filled for dispensing to the series of test containers, start the mixer and withdraw the desired amount in the appropriate syringe while the mixer is in operation. Turn off immediately after the sample is taken to limit the loss of volatiles.
3.5.2.7Use exploratory tests before the full-scale test is set up to determine the concentration of toxicant to be used in each of the five different concentrations. After adding the required amounts of liquid, bring the volume in each of the test containers up to 800 ml with the artificial seawater. To ensure
3.5.2.8When the desired concentrations are prepared, gently release into each beaker the 10 test
3.5.2.9After adding the test animals, incubate the test beakers at 25±1 °C for 48 hours. Recommended lighting is 2,000 lumens/m
3.5.2.10Wash the blender thoroughly after use and repeat the above procedures for each series of tests. Wash the blender as follows: rinse with normal hexane; pour a strong solution of laboratory detergent into the blender to cover the blades; fill the container to about half of its volume with hot tap water; operate the blender for about 30 seconds at high speed; remove and rinse twice with hot tap water, mixing each rinse for 5 seconds at high speed; and then rinse twice with distilled water, mixing each rinse for 5 seconds at high speed.
3.6
3.6.1
3.6.2
3.7
1. Prepare adequate stocks of the appropriate standard dilution water.
2. Add 2 liters of the standard dilution water to the test jars. Each test consists of 5 replicates of each of 5 concentrations of the test material, a control series of 5 beakers, and a standard reference series of 5 different concentrations for a total of 35 beakers. Simultaneous performance of toxicity tests on the oil, product, and oil/product mixture requires a total of 105 beakers.
3. Add the determined amount (quarter points on the log scale) of test material to the appropriate jars. Preliminary tests will be necessary to define the range of definitive test concentrations.
4. Cap the jars tightly with the Teflon-lined screw caps and shake for 5 minutes at 315 to 333 2-cm (0.75-inch) strokes per minute on a reciprocal shaker.
5. Remove the jars from the shaker, take water quality data, dispense 1 liter of solution to the 1-liter glass beaker, and add 10 acclimated fish per beaker.
6. Aerate with 100±15 bubbles per minute through a 1-ml serological pipette, as needed, to maintain DO above 4.0 mg/l.
7. Observe and record mortalities, water quality, and behavioral changes every 24 hours.
8. After 96 hours, terminate the test, and calculate LC
3.7.2
1. Initiate the procedure for hatching the Mysidopsis in sufficient time before the toxicity test is to be conducted so that 5-7 day old larvae are available.
2. With the use of a small pipette, transfer 10 Mysidopsis into small beakers, each containing 200 ml of the proper synthetic seawater.
3. To prepare the test stock product and oil solutions, add 550 ml of the artificial seawater to the prescribed blender jar. By means of a gas-tight glass syringe with a Teflon-tipped plunger, add 0.55 ml of the product (or oil) and mix at 10,000 rpm for 5 seconds. To prepare the test stock oil/product mixture, add 550 ml of the standard seawater to the blender jar. While the blender is in operation (10,000 rpm), add 0.5 ml of the oil, then 0.05 ml of the product with the use of a calibrated syringe with a Teflon-tipped plunger. Blend for 5 seconds after adding the product. One ml of these stock solutions added to the 100 ml of standard seawater in the test containers yields a concentration of 10 ppm product, oil, or oil/product combination (the test will be in a ratio of 1 part product to 10 parts of oil).
4. Each test consists of 5 replications of each of 5 concentrations of the material under study, a control series of 5 beakers and a standard reference series of 5 different concentrations, for a total of 35 beakers. Simultaneous performance of toxicity tests on the oil, product, and oil/product mixture requires a total of 105 beakers. Immediately after preparing the test solution of the product or oil/product solution, and using an appropriately sized syringe, draw up the necessary amount
5. Wash the blender as prescribed for each series of tests.
6. Incubate the test beakers at 25±1 °C for 48 hours with the prescribed lighting.
7. Terminate the experiment after 48 hours, observe and record the mortalities, and determine the LC
4.1
4.2
4.3
4.3.2
4.3.3
4.3.3.1
1. N&P Salts. The following salts are added to distilled water and made up to a 1,000-ml volume. Adjust final pH to 7.8. The solution is sterilized by autoclaving at 121 °C at 15 psig for 20 minutes or by filtering through a sterile 0.22 µm membrane filter.
2. MgSO
3. CaCl
4. FeCl
5. Trace Element Solution. The following salts are added to distilled water and made up to a 1,000-ml volume. The solution is sterilized by autoclaving at 121 °C at 15 psig for 20 minutes.
The pH of the nutrient solution is adjusted with a pH meter calibrated at room temperature (approximately 25 °C) using commercial buffers of pH 4.0, 7.0, and 10.0 (Fisher Scientific), as appropriate, prior to use. The pH is adjusted with concentrated HCl or 10 M NaOH, as appropriate.
4.3.3.2
4.4
4.4.1
4.4.1.1The procedure consists of an experimental shaker flask setup and the specific set of microbiological and chemical analyses that are performed on individual product samples. The following test flasks (labeled with unique identifiers) are prepared and set up on a gyratory shaker at day 0 to reflect the following treatment design:
4.4.1.2For each test, a sheet listing the number of flasks, types of controls, number of replicates, product to be tested, and other information is prepared. The following steps should be adhered to for the experimental setup:
1. Borosilicate glass Erlenmeyer flasks (250-ml) are thoroughly cleaned and autoclaved for 20 minutes at 120 °C at 15 psi, then dried in the drying oven.
2. Flasks are labeled with the appropriate code: product or control, sample day, and letter indicating replicate.
3. 100 ml of seawater is added to each flask.
4. For nutrient and product treatments that require the addition of nutrients, seawater containing the nutrient solution is prepared.
5. Pasteur pipettes should be sterilized in advance. Break off the tip to provide a larger opening prior to sterilization.
6. Pour the approximate amount of oil to be used from the large stock bottle into a sterile beaker. Keep the beaker covered when oil is not being removed.
7. The labeled flasks containing seawater and other additions, as necessary, are placed on the balance. The flask is tared. The appropriate amount of oil (0.5 g) is added drop by drop using a sterile Pasteur pipette with the tip broken off to provide a wider opening. Care is taken to avoid splashing the oil or getting it on the sides of flasks. Precautions
8. The weight of the oil is recorded in the laboratory notebook.
9. The product is prepared and added to the appropriate flasks according to the manufacturer's or vendor's instructions.
10. Flasks are carried upright and carefully placed in the holders on the shaker table to minimize the amount of oil that might adhere to the side of the flasks. Flasks in which a significant amount of oil is splashed on the sides are redone.
11. The prepared flasks are shaken at 200 rpm at 20 °C until such time that they will be removed for sampling.
4.4.2
4.5
4.5.1
4.5.1.1
4.5.1.2
1. Weigh 30 g of NaCl.
2. Dissolve in enough water to make 1,000 ml.
3. Adjust pH to 8.0 with NaOH (10M and 0.5M).
4. Sterilize by autoclaving for 15 minutes at 15 psig.
4.5.1.3
1. Weigh compounds listed below, dissolve in DIH
2. Adjust pH to 6.0.
3. Stir solution for approximately 3 hours, then filter through a Buchner funnel using #1 paper, which will retain approximately 3.8 g of insolubles.
4. Then filter through a 0.45 micron filter into sterile bottles.
5. Cap bottles, label, and store in refrigerator until used.
4.5.1.4
1. Periodically check the effectiveness of sterilization using commercially available tapes or
2. Maintain a media log book that includes the dates, kinds and amounts of media made, pH, and any problems or observations.
3. Before use, check plates and tubes for signs of contamination, drying, or other problems.
4.5.1.5
1. Note any safety or other precautions for particular media.
2. Note precautions to be followed when using the autoclave.
3. Use gloves and other protective clothes when handling media.
4. Use care in handling hot media.
4.5.2
4.5.2.1
1. Prior to sacrificing each flask, remove 0.5 ml of water from each flask and add it to a tube of 4.5 ml sterile phosphate buffer (1:10 dilution) as prepared in the
1. Prepare sufficient sterile 0.4 M NaCl (23.4 g NaCl/1,000 ml B-H) and B-H at pH 7.0 to fill the number of wells required for the test (1.75 ml/well).
2. Using sterile technique, add 1.75 ml of B-H broth to each well.
3. Label the top of the plate with the proper dilution for each row.
4. Add 0.1 ml of fluid from each dilution tube to each well in the appropriate row, starting with the most dilute.
5. After adding the fluid to all the wells, add 20 µl of sterilized No. 2 fuel oil to the top of each well.
6. Incubate each plate at 20 °C.
7. After 14 days of incubation, add 100 µl of p-iodotetrazolium violet dye (50 mg/10 ml of D.I. water) to each well to determine growth.
8. View plates against a white background to determine if color is present. Development of a purple or pink color upon standing for 45 minutes constitutes a positive test.
9. Record the number of positive wells and the dilutions at which they occur.
10. Enter data into a computerized enumeration method using “MPN Calculator” software program (version 2.3 or higher) by Albert J. Klee, U.S. EPA Office of Research and Development, Risk Reduction Engineering Laboratory, Cincinnati, OH.
4.5.2.3
1. Check pH of medium before preparing wells (pH should be approximately 8.0). Adjust pH, if necessary, with dilute NaOH.
2. Keep prepared tetrazolium violet dye solution in the refrigerator in an amber bottle when not in use.
3. Have all laboratory personnel periodically run MPNs on the same sample to test precision.
4.5.2.4
1. Use sterile technique in preparing solutions, dilutions, plates, and MPN wells.
2. Do not pipette potentially hazardous solutions by mouth.
3. Autoclave all plates and wells before discarding.
4.6
4.6.1
1. After 0, 7, and 28 days of rotary shaking and incubating at 20 °C, the reaction vessels are sacrificed. Prior to the chemical analysis, a 0.5-ml sample of the aqueous phase is removed for the microbiological analysis (see Microbial Enumeration above).
2. A surrogate recovery standard is prepared in the following manner: 1,000 mg of d
3. A 100-µl aliquot of the surrogate solution is added to each test flask. The final concentration of surrogates in each flask is approximately 4 ng/µl of solvent in the final extract. The aliphatics and marker data should be corrected for percent recovery of the 5α-androstane surrogate and the aromatics for the d
4. The contents of the flask are placed into a 250-ml separatory funnel.
5. Measure a total volume of 50 ml DCM for use in the extraction. Use 3 10-ml fractions to rinse the flask into the funnel and transfer the remaining aliquot of DCM to the funnel.
6. Stopper and mix vigorously by shaking (approximately 50 times) while ventilating properly.
7. Each funnel is set aside to allow the DCM and water layers to partition. This may take 5-10 minutes for some products, or up to 3 hours if the product has caused the formation of an emulsion.
8. Drain the first 10 ml of the DCM (bottom) layer, collect, cap, uniquely label, and use for gravimetric analysis (see below). Drain the remaining 40 ml and dry it by passing it through a funnel packed with anhydrous sodium sulfate.
9. Assemble a Kuderna-Danish (KD) concentrator by attaching a Snyder column to an evaporation flask with a graduated concentrator tube. Align vertically and partially immerse concentrator tube in a water bath (10). Set the water bath to the appropriate temperature to maintain proper distillation.
10. Collect the de-watered extract into the KD concentrator.
11. Evaporate DCM to approximately 10 ml, then add approximately 50 ml of the exchange solvent (hexane) and concentrate the volume to 10 ml.
12. Rinse the flask into the concentrator tube with 50 ml hexane and concentrate to 10 ml. Repeat one more time with 50 ml of hexane.
13. Remove concentrator tube with the recovered 10 ml of sample volume. The heavier residual material should be present as a precipitate (bottom layer).
14. Centrifuge to aid the separation of the hexane from the precipitant fraction.
15. Place hexane-soluble fraction (top layer)—approximately 1.0 ml—into a GC/MS vial for analysis (see GC/MS Analysis Procedure below). If column fouling and deterioration of separation characteristics occur, an
16. Analyze by GC/MS using the conditions determined by the U.S. EPA Risk Reduction Engineering Laboratory, Water and Hazardous Waste Treatment Research Division, in Cincinnati, OH, which follows U.S. EPA Method 8270 (see GC/MS Analysis Procedure below).
17. Calculate surrogate recovery. If surrogate recovery is less than 85 percent for the marker relative to the surrogate recovery standard (d
18. Drain the seawater into a storage sample vial/container.
19. Seal the vial with a Teflon-lined cap and store frozen. This water layer is kept in case additional extractions are necessary.
4.6.2
1. The 10 ml of DCM extract (from Sample Procedure step 8 above) is placed in a small vial and concentrated to dryness by nitrogen blowdown techniques using a steady stream of nitrogen (pre-purified gas). If the oil is severely biodegraded, a larger volume of DCM (>10 ml) may be necessary for the gravimetric analysis.
2. The residue is weighed 3 times for the gravimetric weight of oil. Record the weight of the oil.
3. Compare statistically (p < 0.05) the weight of the product treatment versus the weight of the control from each respective time period. If a significant decrease is observed in the sampling (flask containing bioremediation agent) weight, then proceed with the remainder of the sample procedure.
4.6.3
1. Weigh 4.0 g alumina (neutral, 80-200 mesh) into scintillation vials covered loosely with aluminum foil caps. Prepare one scintillation vial per sample. Heat for 18 hours at 300 °C or longer. Place in a desiccator of silica until needed.
2. Add 5.0 ml of DCM to a glass luerlok multi-fit syringe (e.g., BD #2471) with stopcock (e.g., Perfectum #6021) in closed position, stainless steel syringe needle (18 gauge), and PTFE frits. Clamp in a vertical position.
3. Transfer 4.0 g of prepared alumina to a plastic weighing boat and fill syringe slowly while applying continuous vibration (e.g., Conair # HM 11FF1).
4. Add a second PTFE frit and push into place on top of the alumina bed.
5. Drain 5.0 ml DCM to the top level of the column frit to await sample addition and discard DCM.
6. Weigh 50 mg ±0.1 mg ANS521 oil into a tared vial.
7. Premeasure 10 ml of DCM into a graduated cylinder. Add 0.2 to 0.3 ml of the DCM to the tared oil vial. Mix and transfer solvent to the column bed with a Pasteur pipette. Open stopcock and collect in a 10-ml volumetric flask. Repeat until approximately 1.0 ml (do not exceed 1.0 ml) of DCM has rinsed the vial and inner walls of the syringe body into the 10-ml flask.
8. Transfer balance of DCM from the graduated cylinder to the column and regulate the solvent flow rate to approximately 1 to 2 ml/minute. Collect all eluent in the 10-ml flask.
9. Transfer a known volume of eluent to another scintillation vial and blow down to dryness (nitrogen).
10. Determine and record weight.
11. Dissolve in 1.0 ml hexane for the GC/MS analysis procedure (see below).
Immediately prior to injection, an internal standard solution of four deuterated compounds is spiked into the sample extracts and injected. Samples are quantified using the internal standard technique (10) for both the aliphatic and aromatic fractions of the oil extracts in order to provide sufficient information that the oil is being degraded. To help ensure that the observed decline in target analytes is caused by biodegradation rather than by physical loss from mishandling or inefficient extraction, it is necessary to normalize the concentrations of the target analytes via a “conserved internal marker.” Conserved internal markers that have been found useful for quantification are C
1. One (1) ml of the hexane extract (from Sample Procedure step 15 above) is placed into a 1.5-ml vial for use on the autosampler of the GC/MS instrument.
2. To this solution, 20 µl of a 500-ng/µl solution of the internal standards is added and the vial is capped for injection. The final concentration of the internal standards in each sample is 10 ng/µl. This solution contains 4 deuterated compounds: d
3. At the start of any analysis period, the mass spectrometer (MS) is tuned to PFTBA by an autotune program, such as the Hewlett-Packard quicktune routine, to reduce operator variability. Set the GC/MS in the SIM mode at a scan rate of 1.5 scans/second to maximize the linear quantitative range and precision of the instrument. Set all other conditions to those specified in Instrument Configuration and Calibration section below.
4. An instrument blank and a daily standard are analyzed prior to analysis of unknowns. Internal standards are combined with the sample extracts and coinjected with each analysis to monitor the instrument's performance during each run.
5. Information that should be included on the acquisition form include operator's name and signature, date of extraction, date and time of autotune, date of injection(s), instrument blank, daily standard mix injection, GC column number, and standards for the 5-point calibration curve.
6. If the instrument is operated for a period of time greater than 12 hours, the tune will be checked and another daily standard analyzed prior to continuing with analyses.
7. The MS is calibrated using a modified version of EPA Method 8270 (10). Specifically, the concentrations of internal standards are 10 ng/µl instead of 40 ng/µl. A five-point calibration curve is obtained for each compound listed in table 6 prior to sample analysis at 1, 5, 10, 25, and 50 ng/µl. A 5-point calibration must be conducted on a standard mix of compounds to determine RRFs for the analytes. The standard mix (excluding the marker) for this calibration curve may be obtained from Absolute Standards, Inc., 498 Russell St., New Haven, CT, 06513, (800) 368-1131. If C
8. Calculate each compound's relative response factor to its corresponding deuterated internal standard indicated above, using the following equation:
9. Identify each analyte based on the integrated abundance from the primary characteristic ion indicated in table 7.
10. Quantitate each analyte using the internal standard technique. The internal standard used shall be the one nearest the retention time of that of a given analyte (Table 8).
11. Use equation 7 to calculate the concentration of analytes in ng/mg (ppm) oil:
12. Compute the “normalized concentrations” for each target analyte concentration at a given sampling time (equation 7) by simply dividing by the conserved internal marker concentration at the same sampling time.
4.6.4
4.6.5
4.6.6
4.7
4.7.1
4.7.2
4.7.3
4.7.3.2If the F-statistic for the interaction is not significant at the 0.05 level (
4.7.3.3If the F-statistic corresponding to both interaction and group are not significant at the 0.05 level, the data indicate no difference between the group means at any point in time. In this case, no further analysis is necessary.
4.7.3.4Finally, Snedecor and Cochran (12) use caution concerning the use of multiple comparisons. If many such comparisons are being conducted, then about 5% of the tested differences will erroneously be concluded as significant. The researcher must guard against such differences causing undue attention.
4.7.4
1. Data listings for each analyte that was analyzed. These should show all raw data.
2. A table of summary statistics for each analyte. The table should include the mean, standard deviation, and sample size for each group at each day.
3. An ANOVA table for each analyte. The table should be of the same format as table 10.
4. A clear summary of the mean separations (if mean separations were necessary). The mean separation methods (LSD or Dunnett), the significance level, the minimum significant difference value, and the significant differences should be clearly marked on each output page.
5. All computer outputs should be included. No programming alterations are necessary. The specific computer package used to analyze the data should be included in the report.
An analysis of the total aromatic data (in ppm) was conducted for the following three groups:
Group 1: Non-nutrient Control
Group 2: Nutrient Control
Group 3: Test Product
4.7.4.2The raw data are shown in table 11. Note the three replications for each group-time combination.
4.7.4.3Table 12 gives the summary statistics (number of observations, means, and standard deviations) for each group-time combination.
4.7.4.4Table 13 shows the results of the two-way ANOVA.
4.7.4.5From table 13, it can be seen that the F-statistic for interaction is significant (F=61.39, p=0.0001). This indicates that group differences exist for one or more days. Protected LSD mean separations were then conducted for each day to determine which group differences exist. The results are summarized in table 14. Note that means with the same letter (T grouping) are not significantly different.
4.7.4.6The grouping letters indicate that the product mean values (group 3) at day 7 and day 28 are significantly different from those of both the nutrient control (group 2) and the non-nutrient control (group 1) for those days. No other significant differences are shown. Therefore, in terms of total aromatic degradation, the test indicates the desired statistically significant difference between the mean of the product and the mean of the non-nutrient control.
The purpose of this format is to summarize in a standard and convenient presentation the technical product test data required by the U.S. Environmental Protection Agency before a product may be added to EPA's NCP Product Schedule, which may be used in carrying out the National Oil and Hazardous Substances Pollution Contingency Plan. This format, however, is not to preclude the submission of all the laboratory data used to develop the data summarized in this format. Sufficient data should be presented on both the effectiveness and toxicity tests to enable EPA to evaluate the adequacy of the summarized data. A summary of the technical product test data should be submitted in the following format. The numbered headings should be used in all submissions. The subheadings indicate the kinds of information
I.
II.
III.
IV.
1. Flammability.
2. Ventilation.
3. Skin and eye contact; protective clothing; treatment in case of contact.
4. Maximum and minimum storage temperatures; optimum storage temperature range; temperatures of phase separations and chemical changes.
V.
VI.
1. Application method.
2. Concentration, application rate (e.g., gallons of dispersant per ton of oil).
3. Conditions for use: water salinity, water temperature, types and ages of pollutants.
VII.
VIII.(a).
VIII.(b).
IX.
X.
1. Flash Point: ( °F)
2. Pour Point: ( °F)
3. Viscosity: ___ at ___ °F (furol seconds)
4. Specific Gravity: ___ at ___ °F
5. pH: (10% solution if hydrocarbon based)
6. Surface Active Agents (Dispersants and Surface Washing Agents)
7. Solvents (Dispersants and Surface Washing Agents)
8. Additives (Dispersants and Surface Washing Agents)
9. Solubility (Surface Collecting Agents)
XI.
(1) L.T. McCarthy, Jr., I. Wilder, and J.S. Dorrier.
(2) M.F. Fingas, K.A. Hughes, and M.A. Schwertzer. “Dispersant Testing at the Environmental Emergencies Technology Division.”
(3) J.R. Clayton, Jr., S-F-Tsang, V. Frank, P. Marsden, and J. Harrington.
(4) J.R. Clayton, Jr. and J.R. Payne.
(5) D.P. Middaugh, M.J. Hemmer, and L. Goodman.
(6) U.S. EPA.
(7) G.S. Douglas, et al. “The Use of Hydrocarbon Analyses for Environmental Assessment and Remediation.” In: P.T. Kostecki and E.J. Calabrese (eds.),
(8) Draft International Standard ISO/DIS 8708 “Crude Petroleum Oil—Determination of Distillation Characteristics Using 15 Theoretical Plates Columns.” International Organization for Standardization.
(9)
(10) U.S. EPA.
(11) M.C. Kennicutt II. “The Effect of Bioremediation on Crude Oil Bulk and Molecular Composition.” In:
(12) G.W. Snedecor and W.G. Cochran.
(13) D.C. Montgomery.
(a) This appendix D to part 300 describes types of remedial actions generally appropriate for specific situations commonly found at remedial sites and lists methods for remedying releases that may be considered by the lead agency to accomplish a particular response action. This list shall not be considered inclusive of all possible methods of remedying releases and does not limit the lead agency from selecting any other actions deemed necessary in response to any situation.
(b) In response to contaminated soil, sediment, or waste, the following types of response actions shall generally be considered:
(1) Techniques for removing contaminated soil, sediment, or waste include the following:
(i) Excavation.
(ii) Hydraulic dredging.
(iii) Mechanical dredging.
(2) Techniques for treating contaminated soil, sediment, or waste include the following:
(i) Biological methods, including the following:
(A) Treatment via modified conventional wastewater treatment techniques.
(B) Anaerobic, aerated, and facultative lagoons.
(C) Supported growth biological reactors.
(D) Microbial biodegradation.
(ii) Chemical methods, including the following:
(A) Chlorination.
(B) Precipitation, flocculation, sedimentation.
(C) Neutralization.
(D) Equalization.
(E) Chemical oxidation.
(iii) Physical methods, including the following:
(A) Air stripping.
(B) Carbon absorption.
(C) Ion exchange.
(D) Reverse osmosis.
(E) Permeable bed treatment.
(F) Wet air oxidation.
(G) Solidification.
(H) Encapsulation.
(I) Soil washing or flushing.
(J) Incineration.
(c) In response to contaminated ground water, the following types of response actions will generally be considered: Elimination or containment of the contamination to prevent further contamination, treatment and/or removal of such ground water to reduce or eliminate the contamination, physical containment of such ground water to reduce or eliminate potential exposure to such contamination, and/or restrictions on use of the ground water to eliminate potential exposure to the contamination.
(1) Techniques that can be used to contain or restore contaminated ground water include the following:
(i) Impermeable barriers, including the following:
(A) Slurry walls.
(B) Grout curtains.
(C) Sheet pilings.
(ii) Permeable treatment beds.
(iii) Ground-water pumping, including the following:
(A) Water table adjustment.
(B) Plume containment.
(iv) Leachate control, including the following:
(A) Subsurface drains.
(B) Drainage ditches.
(C) Liners.
(2) Techniques suitable for the control of contamination of water and sewer lines include the following:
(i) Grouting.
(ii) Pipe relining and sleeving.
(iii) Sewer relocation.
(d)(1) In response to contaminated surface water, the following types of response actions shall generally be considered: Elimination or containment of the contamination to prevent further pollution, and/or treatment of the contaminated water to reduce or eliminate its hazard potential.
(2) Techniques that can be used to control or remediate surface water include the following:
(i) Surface seals.
(ii) Surface water diversions and collection systems, including the following:
(A) Dikes and berms.
(B) Ditches, diversions, waterways.
(C) Chutes and downpipes.
(D) Levees.
(E) Seepage basins and ditches.
(F) Sedimentation basins and ditches.
(G) Terraces and benches.
(iii) Grading.
(iv) Revegetation.
(e) In response to air emissions, the following techniques will be considered:
(1) Pipe vents.
(2) Trench vents.
(3) Gas barriers.
(4) Gas collection.
(5) Overpacking.
(6) Treatment for gaseous emissions, including the following:
(i) Vapor phase adsorption.
(ii) Thermal oxidation.
(f) Alternative water supplies can be provided in several ways, including the following:
(i) Individual treatment units.
(ii) Water distribution system.
(iii) New wells in a new location or deeper wells.
(iv) Cisterns.
(v) Bottled or treated water.
(vi) Upgraded treatment for existing distribution systems.
(g) Temporary or permanent relocation of residents, businesses, and community facilities may be provided where it is determined necessary to protect human health and the environment.
(a) This appendix applies to discharges of oil into or upon the navigable waters of the United States and adjoining shorelines, the waters of the contiguous zone, or waters of the exclusive economic zone, or which may affect the natural resources belonging to, appertaining to, or under the exclusive management authority of the United States.
(b) This appendix is designed to facilitate efficient, coordinated, and effective response to discharges of oil in accordance with the authorities of the CWA. It addresses:
(1) The national response organization that may be activated in response actions, the responsibilities among the federal, state, and local governments, and the resources that are available for response.
(2) The establishment of regional and area contingency plans.
(3) Procedures for undertaking removal actions pursuant to section 311 of the CWA.
(4) Listing of federal trustees for natural resources for purposes of the CWA.
(5) Procedures for the participation of other persons in response actions.
(6) Procedures for compiling and making available cost documentation for response actions.
(7) National procedures for the use of dispersants and other chemicals in removals under the CWA.
(c) In implementing the NCP provisions compiled in this appendix, consideration shall be given to international assistance plans and agreements, security regulations and responsibilities based on international agreements, federal statutes, and executive orders. Actions taken pursuant to the provisions of any applicable international joint contingency plans shall be consistent with the NCP to the greatest extent possible. The Department of State shall be consulted, as appropriate, prior to taking action that may affect its activities.
(a) Department and Agency Title Abbreviations:
Reference is made in the NCP to both the Nuclear Regulatory Commission and the National Response Center. In order to avoid confusion, the NCP will spell out Nuclear Regulatory Commission and use the abbreviation “NRC” only with respect to the National Response Center.
(b) Operational Abbreviations:
(a) All waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide;
(b) Interstate waters, including interstate wetlands;
(c) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, and wetlands, the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:
(1) That are or could be used by interstate or foreign travelers for recreational or other purposes;
(2) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; and
(3) That are used or could be used for industrial purposes by industries in interstate commerce.
(d) All impoundments of waters otherwise defined as navigable waters under this section;
(e) Tributaries of waters identified in paragraphs (a) through (d) of this definition, including adjacent wetlands; and
(f) Wetlands adjacent to waters identified in paragraphs (a) through (e) of this definition: Provided, that waste treatment systems (other than cooling ponds meeting the criteria of this paragraph) are not waters of the United States.
(g) Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.
(a) Vessels—In the case of a vessel, any person owning, operating, or demise chartering the vessel.
(b) Onshore Facilities—In the case of an onshore facility (other than a pipeline), any person owning or operating the facility, except a federal agency, state, municipality, commission, or political subdivision of a state, or any interstate body, that as the owner transfers possession and right to use the property to another person by lease, assignment, or permit.
(c) Offshore Facilities—In the case of an offshore facility (other than a pipeline or a deepwater port licensed under the Deepwater Port Act of 1974 (33 U.S.C. 1501
(d) Deepwater Ports—In the case of a deepwater port licensed under the Deepwater Port Act of 1974 (33 U.S.C. 1501-1524), the licensee.
(e) Pipelines—In the case of a pipeline, any person owning or operating the pipeline.
(f) Abandonment—In the case of an abandoned vessel, onshore facility, deepwater port, pipeline, or offshore facility, the person who would have been responsible parties immediately prior to the abandonment of the vessel or facility.
(a) Minor discharge means a discharge in inland waters of less than 1,000 gallons of oil or a discharge to the coastal waters of less than 10,000 gallons of oil.
(b) Medium discharge means a discharge of 1,000 to 10,000 gallons of oil to the inland waters or a discharge of 10,000 to 100,000 gallons of oil to the coastal waters.
(c) Major discharge means a discharge of more than 10,000 gallons of oil to the inland waters or more than 100,000 gallons of oil to the coastal waters.
(a) Organic products—
(1) Peat moss or straw;
(2) Cellulose fibers or cork;
(3) Corn cobs;
(4) Chicken or duck feathers.
(b) Mineral compounds—
(1) Volcanic ash or perlite;
(2) Vermiculite or zeolite.
(c) Synthetic products—
(1) Polypropylene;
(2) Polyethylene;
(3) Polyurethane;
(4) Polyester.
(b) Stabilizing the situation to preclude the event from worsening is the next priority. All efforts must be focused on saving a vessel that has been involved in a grounding, collision, fire or explosion, so that it does not compound the problem. Comparable measures should be taken to stabilize a situation involving a facility, pipeline, or other source of pollution. Stabilizing the situation includes securing the source of the spill and/or removing the remaining oil from the container (vessel, tank, or pipeline) to prevent additional oil spillage, to reduce the need for follow-up response action, and to minimize adverse impact to the environment.
(c) The response must use all necessary containment and removal tactics in a coordinated manner to ensure a timely, effective response that minimizes adverse impact to the environment.
(d) All parts of this national response strategy should be addressed concurrently, but safety and stabilization are the highest priorities. The OSC should not delay containment and removal decisions unnecessarily and should take actions to minimize adverse impact to the environment that begins as soon as a discharge occurs, as well as actions to minimize further adverse environmental impact from additional discharges.
(e) The priorities set forth in this section are broad in nature, and should not be interpreted to preclude the consideration of other priorities that may arise on a site-specific basis.
(b) Cleanup responsibility for an oil discharge immediately falls on the responsible party, unless the discharge poses a substantial threat to public health or welfare. In a large percentage of oil discharges, the responsible party shall conduct the cleanup. If the responsible party does conduct the removal, the OSC shall ensure adequate surveillance over whatever actions are initiated.
(1) If effective actions are not being taken to eliminate the threat, or if removal is not being properly done, the OSC should, to the extent practicable under the circumstances, so advise the responsible party. If the responsible party does not respond properly, the OSC shall take appropriate response actions and should notify the responsible party of the potential liability for federal response costs incurred by the OSC pursuant to the OPA and CWA. Where practicable, continuing efforts should be made to encourage response by responsible parties.
(2) If the Administrator of EPA or the Secretary of the department in which the USCG is operating determines that there may be an imminent and substantial threat to the public health or welfare or the environment of the United States (including fish, shellfish, and wildlife, public and private property, shorelines, beaches, habitats, and other living and nonliving natural resources under the jurisdiction or control of the United States, because of an actual or threatened discharge of oil from any vessel or offshore or onshore facility into or upon the navigable waters of the United States), the Administrator or Secretary may request the U.S. Attorney General to secure the relief from any person, including the owner or operator of the vessel or facility necessary to abate a threat or, after notice to the affected state, take any other action authorized by section 311 of the CWA including administrative orders, that may be necessary to protect the public health or welfare.
(3) The responsible party is liable for costs of federal removal and damages in accordance with section 311(f) of the CWA, section 1002 of the OPA, and other federal laws.
(c) In those incidents where a discharge or threat of discharge poses a substantial threat to the public health or welfare of the
(d) During responses to any discharge the OSC may request advice or support from the Special Teams and any local support units identified by the Area Committee. Examples include scientific advice from the Scientific Support Coordinator (SSC), technical guidance or prepositioned equipment from the District Response Group (DRG), or public information assistance from the National Strike Force (NSF).
(e) When an oil discharge exceeds the response capability of the region in which it occurs, transects regional boundaries, or involves a substantial threat to the public health or welfare, substantial amounts of property, or substantial threats to the natural resources, the NRT should be activated as an emergency response team. If appropriate the RRT Chairman may contact the NRT Chairman and request the NRT activation.
The NRS is the mechanism for coordinating response actions by all levels of government in support of the OSC. The NRS organization is divided into national, regional, and area levels. The national level comprises the NRT, the National Strike Force Coordination Center (NSFCC), and the National Response Center (NRC). The regional level is comprised of the RRT. The area level is made up of the OSC, Special Teams, and Area Committees. The basic framework for the response management structure is a system (e.g., a unified command system), that brings together the functions of the federal government, the state government, and the responsible party to achieve an effective and efficient response, where the OSC retains authority.
(b) The chair of the NRT shall be the representative of the EPA and the vice chair shall be the representative of the USCG, with the exception of periods of activation because of response action. During activation, the chair shall be the member agency providing the OSC. The vice chair shall maintain records of NRT activities along with national, regional, and area plans for response actions.
(c) While the NRT desires to achieve a consensus on all matters brought before it, certain matters may prove unresolvable by this means. In such cases, each agency serving as a participating agency on the NRT may be accorded one vote in NRT proceedings.
(d) The NRT may establish such bylaws, procedures, and committees as it deems appropriate to further the purposes for which it is established.
(e) The NRT shall evaluate methods of responding to discharges, shall recommend any changes needed in the response organization, and shall recommend to the Administrator of EPA changes to the NCP designed to improve the effectiveness of the national response system, including drafting of regulatory language.
(f) The NRT shall provide policy and program direction to the RRTs.
(g) The NRT may consider and make recommendations to appropriate agencies on the training, equipping, and protection of response teams and necessary research, development, demonstration, and evaluation to improve response capabilities.
(h) Direct planning and preparedness responsibilities of the NRT include:
(1) Maintaining national preparedness to respond to a major discharge of oil that is beyond regional capabilities;
(2) Monitoring incoming reports from all RRTs and activating for a response action, when necessary;
(3) Coordinating a national program to assist member agencies in preparedness planning and response, and enhancing coordination of member agency preparedness programs;
(4) Developing procedures, in coordination with the NSFCC, as appropriate, to ensure the coordination of federal, state, and local governments, and private response to oil discharges;
(5) Monitoring response-related research and development, testing, and evaluation activities of NRT agencies to enhance coordination, avoid duplication of effort, and facilitate research in support of response activities;
(6) Developing recommendations for response training and for enhancing the coordination of available resources among agencies with training responsibilities under the NCP;
(7) Reviewing regional responses to oil discharges, including an evaluation of equipment readiness and coordination among responsible public agencies and private organizations; and
(8) Assisting in developing a national exercise program, in coordination with the
(i) The NRT shall consider matters referred to it for advice or resolution by an RRT.
(j) The NRT should be activated as an emergency response team:
(1) When an oil discharge:
(A) Exceeds the response capability of the region in which it occurs;
(B) Transects regional boundaries; or
(C) Involves a substantial threat to the public health or welfare, substantial amounts of property, or substantial threats to natural resources;
(2) If requested by any NRT member.
(k) When activated for a response action, the NRT will meet at the call of the chair and may:
(1) Monitor and evaluate reports from the OSC and recommend to the OSC, through the RRT, actions to combat the discharge;
(2) Request other federal, state and local governments, or private agencies, to provide resources under their existing authorities to combat a discharge, or to monitor response operations; and
(3) Coordinate the supply of equipment, personnel, or technical advice to the affected region from other regions or districts.
(b) The Commandant, USCG, in conjunction with other NRT agencies, provides the necessary personnel, communications, plotting facilities, and equipment for the NRC.
(c) Notice of an oil discharge in an amount equal to or greater than the reportable quantity must be made immediately in accordance with 33 CFR part 153, subpart B. Notification will be made to the NRC Duty Officer, HQ USCG, Washington, DC, telephone (800) 424-8802 or (202) 267-2675. All notices of discharges received at the NRC will be relayed immediately by telephone to the OSC.
(a) Technical assistance, equipment, and other resources to augment the OSC staff during spill response;
(b) Assistance in coordinating the use of private and public resources in support of the OSC during a response to or a threat of a worst case discharge of oil;
(c) Review of the area contingency plan, including an evaluation of equipment readiness and coordination among responsible public agencies and private organizations;
(d) Assistance in locating spill response resources for both response and planning, using the NSFCC's national and international computerized inventory of spill response resources;
(e) Coordination and evaluation of pollution response exercises; and
(f) Inspection of district prepositioned pollution response equipment.
(b) The two principal components of the RRT mechanism are a standing team, which consists of designated representatives from each participating federal agency, state governments, and local governments (as agreed upon by the states); and incident-specific teams formed from the standing team when the RRT is activated for a response. On incident-specific teams, participation by the RRT member agencies will relate to the technical nature of the incident and its geographic location.
(1) The standing team's jurisdiction corresponds to the standard federal regions, except for Alaska, Oceania in the Pacific, and the Caribbean area, each of which has a separate standing RRT. The role of the standing RRT includes communications systems and procedures, planning, coordination, training, evaluation, preparedness, and related matters on a regionwide basis. It also includes coordination of Area Committees for these functions in areas within their respective regions, as appropriate.
(2) The role of the incident-specific team is determined by the operational requirements of the response to a specific discharge. Appropriate levels of activation and/or notification of the incident-specific RRT, including
(c) The representatives of EPA and the USCG shall act as co-chairs of the RRTs except when the RRT is activated. When the RRT is activated for response actions, the chair is the member agency providing the OSC.
(d) Each participating agency should designate one member and at least one alternate member to the RRT. Agencies whose regional subdivisions do not correspond to the standard federal regions may designate additional representatives to the standing RRT to ensure appropriate coverage of the standard federal region. Participating states may also designate one member and at least one alternate member to the RRT. Indian tribal governments may arrange with the RRT for representation appropriate to their geographical location. All agencies and states may also provide additional representatives as observers to meetings of the RRT.
(e) RRT members should designate representatives and alternates from their agencies as resource personnel for RRT activities, including RRT work planning, and membership on incident-specific teams in support of the OSCs.
(f) Federal RRT members or their representatives should provide OSCs with assistance from their respective federal agencies commensurate with agency responsibilities, resources, and capabilities within the region. During a response action, the members of the RRT should seek to make available the resources of their agencies to the OSC as specified in the RCP and ACP.
(g) RRT members should nominate appropriately qualified representatives from their agencies to work with OSCs in developing and maintaining ACPs.
(h) Affected states are encouraged to participate actively in all RRT activities. Each state Governor is requested to assign an office or agency to represent the state on the appropriate RRT; to designate representatives to work with the RRT in developing RCPs; to plan for, make available, and coordinate state resources for use in response actions; and to serve as the contact point for coordination of response with local government agencies, whether or not represented on the RRT. The state's RRT representative should keep the State Emergency Response Commission (SERC) apprised of RRT activities and coordinate RRT activities with the SERC. Local governments are invited to participate in activities on the appropriate RRT as provided by state law or as arranged by the state's representative. Indian tribes are also invited to participate in such activities.
(i) The standing RRT shall recommend changes in the regional response organization as needed, revise the RCP as needed, evaluate the preparedness of the participating agencies and the effectiveness of ACPs for the federal response to discharges, and provide technical assistance for preparedness to the response community. The RRT should:
(1) Review and comment, to the extent practicable, on local emergency response plans or other issues related to the preparation, implementation, or exercise of such plans upon request of a local emergency planning committee;
(2) Evaluate regional and local responses to discharges on a continuing basis, considering available legal remedies, equipment readiness, and coordination among responsible public agencies and private organizations, and recommend improvements;
(3) Recommend revisions of the NCP to the NRT, based on observations of response operations;
(4) Review OSC actions to ensure that RCPs and ACPs are effective;
(5) Encourage the state and local response community to improve its preparedness for response;
(6) In coordination with the Area Committee and in accordance with any applicable laws, regulations, or requirements, conduct advance planning for use of dispersants, surface washing agents, surface collecting agents, burning agents, bioremediation agents, or other chemical agents in accordance with subpart J of this part;
(7) Be prepared to provide response resources to major discharges or releases outside the region;
(8) Conduct or participate in training and exercises as necessary to encourage preparedness activities of the response community within the region;
(9) Meet at least semiannually to review response actions carried out during the preceding period, consider changes in RCPs, and recommend changes in ACPs;
(10) Provide letter reports on RRT activities to the NRT twice a year, no later than January 31 and July 31; and
(11) Ensure maximum participation in the national exercise program for announced and unannounced exercises.
(j)(1) The RRT may be activated by the chair as an incident-specific response team when a discharge:
(A) Exceeds the response capability available to the OSC in the place where it occurs;
(B) Transects state boundaries;
(C) May pose a substantial threat to the public health or welfare, or to regionally significant amounts of property; or
(D) Is a worst case discharge, as defined in section 1.5 of this appendix.
(2) The RRT shall be activated during any discharge upon a request from the OSC, or
(3) During prolonged removal or remedial action, the RRT may not need to be activated or may need to be activated only in a limited sense, or may need to have available only those member agencies of the RRT who are directly affected or who can provide direct response assistance.
(4) When the RRT is activated for a discharge or release, agency representatives will meet at the call of the chair and may:
(A) Monitor and evaluate reports from the OSC, advise the OSC on the duration and extent of response, and recommend to the OSC specific actions to respond to the discharge;
(B) Request other federal, state, or local governments, or private agencies, to provide resources under their existing authorities to respond to a discharge or to monitor response operations;
(C) Help the OSC prepare information releases for the public and for communication with the NRT;
(D) If the circumstances warrant, make recommendations to the regional or district head of the agency providing the OSC that a different OSC should be designated; and
(E) Submit pollution reports to the NRC as significant developments occur.
(5) RCPs shall specify detailed criteria for activation of RRTs.
(6) At the regional level, a Regional Response Center (RRC) may provide facilities and personnel for communications, information storage, and other requirements for coordinating response. The location of each RRC should be provided in the RCP.
(7) When the RRT is activated, affected states may participate in all RRT deliberations. State government representatives participating in the RRT have the same status as any federal member of the RRT.
(8) The RRT can be deactivated when the incident-specific RRT chair determines that the OSC no longer requires RRT assistance.
(9) Notification of the RRT may be appropriate when full activation is not necessary, with systematic communication of pollution reports or other means to keep RRT members informed as to actions of potential concern to a particular agency, or to assist in later RRT evaluation of regionwide response effectiveness.
(k) Whenever there is insufficient national policy guidance on a matter before the RRT, a technical matter requiring solution, a question concerning interpretation of the NCP, or a disagreement on discretionary actions among RRT members that cannot be resolved at the regional level, it may be referred to the NRT for advice.
(b) The OSC is responsible for overseeing development of the ACP in the area of the OSC's responsibility. The ACP, when implemented in conjunction with other provisions of the NCP, shall be adequate to remove a worst case discharge, and to mitigate and prevent a substantial threat of such a discharge, from a vessel, offshore facility, or onshore facility operating in or near the area.
(b) SSCs may be designated by the OSC as the principal advisors for scientific issues, communication with the scientific community, and coordination of requests for assistance from state and federal agencies regarding scientific studies. The SSC strives for a consensus on scientific issues affecting the response, but ensures that differing opinions within the community are communicated to the OSC.
(1) Generally, SSCs are provided by NOAA in the coastal zones, and by EPA in the inland zone. OSC requests for SSC support may be made directly to the SSC assigned to the area or to the agency member of the RRT. NOAA SSCs may also be requested through
(2) During a response, the SSC serves on the federal OSC's staff and may, at the request of the OSC, lead the scientific team and be responsible for providing scientific support for operational decisions and for coordinating on-scene scientific activity. Depending on the nature and location of the incident, the SSC integrates expertise from governmental agencies, universities, community representatives, and industry to assist the OSC in evaluating the hazards and potential effects of releases and in developing response strategies.
(3) At the request of the OSC, the SSC may facilitate the OSC's work with the lead administrative trustee for natural resources to ensure coordination between damage assessment data collection efforts and data collected in support of response operations.
(4) SSCs support the RRTs and the Area Committees in preparing regional and area contingency plans and in conducting spill training and exercises. For area plans, the SSC provides leadership for the synthesis and integration of environmental information required for spill response decisions in support of the OSC.
(c)(1) SUPSALV has an extensive salvage/search and recovery equipment inventory with the requisite knowledge and expertise to support these operations, including specialized salvage, firefighting, and petroleum, oil and lubricants offloading capability.
(2) When possible, SUPSALV will provide equipment for training exercises in support of national and regional contingency planning objectives.
(3) The OSC/RPM may request assistance directly from SUPSALV. Formal requests are routed through the Chief of Naval Operations (N312).
(d) The ERT is established by the EPA in accordance with its disaster and emergency responsibilities. The ERT has expertise in treatment technology, biology, chemistry, hydrology, geology and engineering.
(1) The ERT can provide access to special decontamination equipment and advice to the OSC in hazard evaluation; risk assessment; multimedia sampling and analysis program; on-site safety, including development and implementation plans; cleanup techniques and priorities; water supply decontamination and protection; application of dispersants; environmental assessment; degree of cleanup required; and disposal of contaminated material. The ERT also provides both introductory and intermediate level training courses to prepare response personnel.
(2) OSC or RRT requests for ERT support should be made to the EPA representative on the RRT; EPA Headquarters, Director, Emergency Response Division; or the appropriate EPA regional emergency coordinator.
(e) The NSF is a special team established by the USCG, including the three USCG Strike Teams, the Public Information Assist Team (PIAT), and the NSFCC. The NSF is available to assist OSCs in their preparedness and response duties.
(1) The three Strike Teams (Atlantic, Gulf, and Pacific) provide trained personnel and specialized equipment to assist the OSC in training for spill response, stabilizing and containing the spill, and in monitoring or directing the response actions of the responsible parties and/or contractors. The OSC has a specific team designated for initial contact and may contact that team directly for any assistance.
(2) The NSFCC can provide the following support to the OSC:
—Technical assistance, equipment and other resources to augment the OSC staff during spill response;
—Assistance in coordinating the use of private and public resources in support of the OSC during a response to or a threat of a worst case discharge of oil;
—Review of the ACP, including an evaluation of equipment readiness and coordination among responsible public agencies and private organizations;
—Assistance in locating spill response resources for both response and planning, using the NSFCC's national and international computerized inventory of spill response resources;
—Coordination and evaluation of pollution response exercises; and
—Inspection of district prepositioned pollution response equipment.
(3) PIAT is an element of the NSFCC staff which is available to assist OSCs to meet the demands for public information during a response or exercise. Its use is encouraged any time the OSC requires outside public affairs support. Requests for PIAT assistance may be made through the NSFCC or NRC.
(f)(1) The DRG assists the OSC by providing technical assistance, personnel, and equipment, including pre-positioned equipment. Each DRG consists of all Coast Guard personnel and equipment, including marine firefighting equipment, in its district, additional pre-positioned equipment, and a District Response Advisory Team (DRAT) that is available to provide support to the OSC in the event that a spill exceeds local response capabilities. Each DRG:
(A) Shall provide technical assistance, equipment, and other resources as available when requested by an OSC through the USCG representative to the RRT;
(B) Shall ensure maintenance of all USCG response equipment within its district;
(C) May provide technical assistance in the preparation of the ACP; and
(D) Shall review each of those plans that affect its area of geographic responsibility.
(2) In deciding where to locate personnel and pre-positioned equipment, the USCG shall give priority emphasis to:
(A) The availability of facilities for loading and unloading heavy or bulky equipment by barge;
(B) The proximity to an airport capable of supporting large military transport aircraft;
(C) The flight time to provide response to oil spills in all areas of the Coast Guard district with the potential for marine casualties;
(D) The availability of trained local personnel capable of responding in an oil spill emergency; and
(E) Areas where large quantities of petroleum products are transported.
(g) The NPFC is responsible for implementing those portions of Title I of the OPA that have been delegated to the Secretary of the department in which the Coast Guard is operating. The NPFC is responsible for addressing funding issues arising from discharges and threats of discharges of oil. The NPFC:
(1) Issues Certificates of Financial Responsibility to owners and operators of vessels to pay for costs and damages that are incurred by their vessels as a result of oil discharges; (2) Provides funding for various response organizations for timely abatement and removal actions related to oil discharges;
(3) Provides equitable compensation to claimants who sustain costs and damages from oil discharges when the responsible party fails to do so;
(4) Recovers monies from persons liable for costs and damages resulting from oil discharges to the full extent of liability under the law; and
(5) Provides funds to initiate natural resources damage assessment.
(h) The organizational concepts of the national response system discussed above are depicted in Figure 3.
(1) The national response organization that may be activated in response actions and specifies responsibilities among the federal, state, and local governments and describes resources that are available for response;
(2) The establishment of requirements for federal, regional, and area contingency plans;
(3) Procedures for undertaking removal actions pursuant to section 311 of the CWA;
(4) Procedures for involving state governments in the initiation, development, selection, and implementation of response actions;
(5) Listing of federal trustees for natural resources for purposes of the CWA;
(6) Procedures for the participation of other persons in response actions; and
(7) National procedures for the use of dispersants and other chemicals in removals under the CWA.
(b) In implementing the NCP, consideration shall be given to international assistance plans and agreements, security regulations and responsibilities based on international agreements, federal statutes, and executive orders. Actions taken pursuant to the provisions of any applicable international joint contingency plans shall be consistent with the NCP, to the greatest extent possible. The Department of State shall be consulted, as appropriate, prior to taking action which may affect its activities.
(b) The areas of responsibility may include several Title III local planning districts, or parts of such districts. In developing the ACP, the OSC shall coordinate with affected SERCs and LEPCs. The ACP shall provide for a well coordinated response that is integrated and compatible to the greatest extent possible with all appropriate response plans of state, local, and non-federal entities, and especially with Title III local emergency response plans.
(c) The ACP shall include the following:
(1) A description of the area covered by the plan, including the areas of special economic or environmental importance that might be impacted by a discharge;
(2) A description in detail of the responsibilities of an owner or operator and of federal, state, and local agencies in removing a discharge, and in mitigating or preventing a substantial threat of a discharge;
(3) A list of equipment (including firefighting equipment), dispersants, or other mitigating substances and devices, and personnel available to an owner or operator and federal, state, and local agencies, to ensure an effective and immediate removal of a discharge, and to ensure mitigation or prevention of a substantial threat of a discharge (this may be provided in an appendix or by reference to other relevant emergency plans (e.g., state or LEPC plans), which may include such equipment lists);
(4) A description of procedures to be followed for obtaining an expedited decision regarding the use of dispersants; and
(5) A detailed description of how the plan is integrated into other ACPs and tank vessel, offshore facility, and onshore facility response plans approved by the President, and into operating procedures of the NSFCC.
(b) The annex shall:
(1) Identify and establish priorities for fish and wildlife resources and their habitats and other important sensitive areas requiring protection from any direct or indirect effects from discharges that may occur. These effects include, but are not limited to, any seasonal or historical use, as well as all critical, special, significant or otherwise designated protected areas.
(2) Provide a mechanism to be used during a spill response for timely identification of protection priorities of those fish and wildlife resources and habitats and sensitive environmental areas that may be threatened or injured by a discharge. These include as appropriate, not only marine and freshwater species, habitats, and their food sources, but also terrestrial wildlife and their habitats that may be affected directly by onshore oil or indirectly by oil-related factors, such as loss or contamination of forage. The mechanism shall also provide for expeditious evaluation and appropriate consultations on the effects to fish and wildlife, their habitat, and other sensitive environments from the application of chemical countermeasures or other countermeasures not addressed under paragraph (3) of this section.
(3) Identify potential environmental effects on fish and wildlife, their habitat, and other sensitive environments resulting from removal actions or countermeasures, including the option of no removal. Based on this evaluation of potential environmental effects, the annex should establish priorities for application of countermeasure and removal actions to habitats within the geographic region of the ACP. The annex should establish methods to minimize the identified effects on fish and wildlife because of response activities, including, but not limited to, disturbance of sensitive areas and habitats; illegal or inadvertent taking or disturbance of
(4) Provide for pre-approval of application of specific countermeasures or removal actions that, if expeditiously applied, will minimize adverse spill-induced impacts to fish and wildlife resources, their habitat, and other sensitive environments. Such pre-approval plans must be consistent with paragraphs (2) and (3) of this section and subpart J requirements of the NCP, and must have the concurrence of the natural resource trustees.
(5) Provide monitoring plan(s) to evaluate the effectiveness of different countermeasures or removal actions in protecting the environment. Monitoring should include “set-aside” or “control” areas, where no mitigative actions are taken.
(6) Identify and plan for the acquisition and utilization of necessary response capabilities for protection, rescue, and rehabilitation of fish and wildlife resources and habitat. This may include appropriately permitted private organizations and individuals with appropriate expertise and experience. The suitable organizations should be identified in cooperation with natural resource law enforcement agencies. Such capabilities shall include, but not be limited to, identification of facilities and equipment necessary for deterring sensitive fish and wildlife from entering oiled areas, and for capturing, holding, cleaning, and releasing injured wildlife. Plans for the provision of such capabilities shall ensure that there is no interference with other OSC removal operations.
(7) Identify appropriate federal and state agency contacts and alternates responsible for coordination of fish and wildlife rescue and rehabilitation and protection of sensitive environments; identify and provide for required fish and wildlife handling and rehabilitation permits necessary under federal and state laws; and provide guidance on the implementation of law enforcement requirements included under current federal and state laws and corresponding regulations. Requirements include, but are not limited to procedures regarding the capture, transport, rehabilitation, release of wildlife exposed to or threatened by oil, and disposal of contaminated carcasses of wildlife.
(8) Identify and secure the means for providing, if needed, the minimum required Occupational Safety and Health Administration (OSHA) training for volunteers, including those who assist with injured wildlife.
(9) Evaluate the compatibility between this annex and non-federal response plans (including those of vessels, facilities and pipelines) on issues affecting fish and wildlife, their habitat, and sensitive environments.
This section describes and cross-references the regulations that implement section 311(j)(5) of the CWA. A tank vessel, as defined under section 2101 of title 46, U.S. Code, an offshore facility, and an onshore facility that, because of its location, could reasonably expect to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or exclusive economic zone must prepare and submit a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of oil or a hazardous substance. These response plans are required to be consistent with applicable Area Contingency Plans. These regulations are codified as follows:
(a) For tank vessels, these regulations are codified in 33 CFR part 155;
(b) For offshore facilities, these regulations are codified in 30 CFR part 254;
(c) For non-transportation related onshore facilities, these regulations are codified in 40 CFR part 112.20;
(d) For transportation-related onshore facilities, these regulations are cofidied in 33 CFR part 154;
(e) For pipeline facilities, these regulations are codified in 49 CFR part 194; and
(f) For rolling stock, these regulations are codified in 49 CFR part 106 et al.
(b) These plans shall be developed to coordinate responsible party actions with the OSC and the ACP response strategies, for response to oil discharges within the inland and coastal zones of the United States.
(a) RRTs and Area Committees shall address, as part of their planning activities, the desirability of using appropriate dispersants, surface washing agents, surface collecting agents, bioremediation agents, or miscellaneous oil spill control agents listed on the NCP Product Schedule, and the desirability of using appropriate burning agents. RCPs and ACPs shall, as appropriate, include applicable preauthorization plans and address the specific contexts in which such products should and should not be used. In meeting the provisions of this paragraph, preauthorization plans may address factors such as the potential sources and types of oil that might be spilled, the existence and location of environmentally sensitive resources that might be impacted by spilled oil, available product and storage locations, available equipment and adequately trained operators, and the available means to monitor product application and effectiveness. The RRT representatives from EPA and the states with jurisdiction over the waters of the area to which a preauthorization plan applies and the DOC and DOI natural resource trustees shall review and either approve, disapprove, or approve with modification the preauthorization plans developed by Area Committees, as appropriate. Approved preauthorization plans shall be included in the appropriate RCPs and ACPs. If the RRT representatives from EPA and the states with jurisdiction over the waters of the area to which a preauthorization plan applies and the DOC and DOI natural resource trustees approve in advance the use of certain products under specified circumstances as described in the preauthorization plan, the OSC may authorize the use of the products without obtaining the specific concurrences described in paragraphs (b) and (c) of this section.
(b) For spill situations that are not addressed by the preauthorization plans developed pursuant to paragraph (a) of this section, the OSC, with the concurrence of the EPA representative to the RRT and, as appropriate, the concurrence of the RRT representatives from the states with jurisdiction over the navigable waters threatened by the discharge, and in consultation with the DOC and DOI natural resource trustees, when practicable, may authorize the use of dispersants, surface washing agents, surface collecting agents, bioremediation agents, or miscellaneous oil spill control agents on the oil discharge, provided that the products are listed on the NCP Product Schedule.
(c) The OSC, with the concurrence of the EPA representative to the RRT and, as appropriate, the concurrence of the RRT representatives from the states with jurisdiction over the navigable waters threatened by the discharge, and in consultation with the DOC and DOI natural resource trustees, when practicable, may authorize the use of burning agents on a case-by-case basis.
(d) The OSC may authorize the use of any dispersant, surface washing agent, surface collecting agent, other chemical agent, burning agent, bioremediation agent, or miscellaneous oil spill control agent, including products not listed on the NCP Product Schedule, without obtaining the concurrence of the EPA representative to the RRT and, as appropriate, the RRT representatives from the states with jurisdiction over the navigable waters threatened by the discharge, when, in the judgment of the OSC, the use of the product is necessary to prevent or substantially reduce a hazard to human life. Whenever the OSC authorizes the use of a product pursuant to this paragraph, the OSC is to inform the EPA RRT representative and, as appropriate, the RRT representatives from the affected states and, when practicable, the DOC/DOI natural resource trustees of the use of a product, including products not on the Schedule, as soon as possible. Once the threat to human life has subsided, the continued use of a product shall be in accordance with paragraphs (a), (b), and (c) of this section.
(e) Sinking agents shall not be authorized for application to oil discharges.
(f) When developing preauthorization plans, RRTs may require the performance of supplementary toxicity and effectiveness testing of products, in addition to the test methods specified in § 300.915 and described in appendix C to part 300, due to existing site-specific or area-specific concerns.
(a) The OSC shall direct response efforts and coordinate all other efforts at the scene of a discharge. As part of the planning and preparation for response, OSCs shall be predesignated by the regional or district head of the lead agency.
(b) The first federal official affiliated with an NRT member agency to arrive at the scene of a discharge should coordinate activities under the NCP and is authorized to initiate, in consultation with the OSC, any necessary actions normally carried out by the OSC until the arrival of the predesignated OSC. This official may initiate federal OSLTF-financed actions only as authorized by the OSC or, if the OSC is unavailable, the authorized representative of the lead agency.
(c) The OSC shall, to the extent practicable, collect pertinent facts about the discharge, such as its source and cause; the identification of responsible parties; the nature, amount, and location of discharged materials; the probable direction and time of travel of discharged materials; whether the discharge is a worst case discharge; the pathways to human and environmental exposure; the potential impact on human health, welfare, and safety and the environment; whether the discharge poses a substantial threat to the public health or welfare; the potential impact on natural resources and property which may be affected; priorities for protecting human health and welfare and the environment; and appropriate cost documentation.
(d) The OSC's efforts shall be coordinated with other appropriate federal, state, local, and private response agencies. OSCs may designate capable persons from federal, state, or local agencies to act as their on-scene representatives. State and local governments, however, are not authorized to take actions under subpart D of the NCP that involve expenditures of the OSLTF unless an appropriate contract or cooperative agreement has been established.
(e) The OSC should consult regularly with the RRT and NSFCC, as appropriate, in carrying out the NCP and keep the RRT and NSFCC, as appropriate, informed of activities under the NCP.
(f) The OSC should evaluate incoming information and immediately advise FEMA of potential major disaster situations.
(g) The OSC is responsible for addressing worker health and safety concerns at a response scene.
(h) In those instances where a possible public health emergency exists, the OSC should notify the HHS representative to the RRT. Throughout response actions, the OSC may call upon the OSHA and HHS representative for assistance on worker health and safety issues.
(i) All federal agencies should plan for emergencies and develop procedures for dealing with oil discharges and releases of hazardous substances, pollutants, or contaminants from vessels and facilities under their jurisdiction. All federal agencies, therefore, are responsible for designating the office that coordinates response to such incidents in accordance with the NCP and applicable federal regulations and guidelines.
(j)(1) The OSC shall ensure that the natural resource trustees are promptly notified of discharges.
(2) The OSC shall coordinate all response activities with the affected natural resource trustees and shall consult with the affected trustees on the appropriate removal action to be taken.
(3) Where the OSC becomes aware that a discharge may affect any endangered or threatened species, or their habitat, the OSC shall consult with DOI, DOC/NOAA, and, if appropriate, the cognizant federal land managing agency.
(k) The OSC shall submit pollution reports (POLREPs) to the RRT and other appropriate agencies as significant developments occur during response actions, through communications networks or procedures agreed to by the RRT and covered in the RCP.
(l) The OSC should ensure that all appropriate public and private interests are kept informed and that their concerns are considered throughout a response, to the extent practicable.
(1) A report submitted by the person in charge of a vessel or facility, in accordance with statutory requirements;
(2) Deliberate search by patrols;
(3) Random or incidental observation by government agencies or the public; or
(4) Other sources.
(b) Any person in charge of a vessel or a facility shall, as soon as he or she has knowledge of any discharge from such vessel or facility in violation of section 311(b)(3) of the CWA, immediately notify the NRC. Notification shall be made to the NRC Duty Officer, HQ USCG, Washington, DC, telephone (800) 424-8802 or (202) 267-2675. If direct reporting to the NRC is not practicable, reports may be made to the USCG or EPA predesignated OSC for the geographic area where the discharge occurs. The EPA predesignated OSC may also be contacted through the regional 24-hour emergency response telephone number. All such reports shall be promptly relayed to the NRC. If it is not possible to notify the NRC or predesignated OSC immediately, reports may be made immediately to the nearest Coast Guard unit. In any event, such person in charge of the vessel or facility shall notify the NRC as soon as possible.
(c) Any other person shall, as appropriate, notify the NRC of a discharge of oil.
(d) Upon receipt of a notification of discharge, the NRC shall promptly notify the OSC. The OSC shall ensure notification of the appropriate state agency of any state which is, or may reasonably be expected to be, affected by the discharge. The OSC shall then proceed with the following phases as outlined in the RCP and ACP.
(a) The OSC is responsible for promptly initiating a preliminary assessment.
(b) The preliminary assessment shall be conducted using available information, supplemented where necessary and possible by an on-scene inspection. The OSC shall undertake actions to:
(1) Evaluate the magnitude and severity of the discharge or threat to public health or welfare or the environment;
(2) Assess the feasibility of removal; and
(3) To the extent practicable, identify potentially responsible parties.
(c) Where practicable, the framework for the response management structure is a system (e.g., a unified command system), that brings together the functions of the federal government, the state government, and the responsible party to achieve an effective and efficient response, where the OSC maintains authority.
(d) Except in a case when the OSC is required to direct the response to a discharge that may pose a substantial threat to the public health or welfare (including, but not limited to fish, shellfish, wildlife, other natural resources, and the public and private beaches and shorelines of the United States), the OSC may allow the responsible party to voluntarily and promptly perform removal actions, provided the OSC determines such actions will ensure an effective and immediate removal of the discharge or mitigation or prevention of a substantial threat of a discharge. If the responsible party does conduct the removal, the OSC shall ensure adequate surveillance over whatever actions are initiated. If effective actions are not being taken to eliminate the threat, or if removal is not being properly done, the OSC should, to the extent practicable under the circumstances, so advise the responsible party. If the responsible party does not respond properly, the OSC shall take appropriate response actions and should notify the responsible party of the potential liability for federal response costs incurred by the OSC pursuant to the OPA and CWA. Where practicable, continuing efforts should be made to encourage response by responsible parties.
(1) In carrying out a response under this section, the OSC may:
(A) Remove or arrange for the removal of a discharge, and mitigate or prevent a substantial threat of a discharge, at any time;
(B) Direct or monitor all federal, state, and private actions to remove a discharge; and
(C) Remove and, if necessary, destroy a vessel discharging, or threatening to discharge, by whatever means are available.
(2) If the discharge results in a substantial threat to the public health or welfare of the United States (including, but not limited to fish, shellfish, wildlife, other natural resources, and the public and private beaches and shorelines of the United States), the OSC must direct all response efforts, as provided in section 5.3.4 of this appendix. The OSC should declare as expeditiously as practicable to spill response participants that the federal government will direct the response. The OSC may act without regard to any other provision of the law governing contracting procedures or employment of personnel by the federal government in removing or arranging for the removal of such a discharge.
(e) The OSC shall ensure that the natural resource trustees are promptly notified in the event of any discharge of oil, to the maximum extent practicable as provided in the Fish and Wildlife and Sensitive Environments Plan annex to the ACP for the area in which the discharge occurs. The OSC and the trustees shall coordinate assessments, evaluations, investigations, and planning with respect to appropriate removal actions. The OSC shall consult with the affected trustees on the appropriate removal action to be taken. The trustees will provide timely advice concerning recommended actions with regard to trustee resources potentially affected. The trustees also will assure that the OSC is informed of their activities in natural resource damage assessment that may affect response operations. The trustees shall assure, through the lead administrative trustee, that all data from the natural resource damage assessment activities that may support more effective operational decisions are provided in a timely manner to the OSC. When circumstances permit, the OSC shall share the use of non-monetary response resources (
(a) In accordance with the CWA, the Administrator of EPA or the Secretary of the department in which the USCG is operating, as appropriate, is authorized to act for the
(b) The Administrator of EPA or the Secretary of the department in which the USCG is operating, as appropriate, is authorized to initiate and, in the case of a discharge posing a substantial threat to public health or welfare is required to initiate and direct, appropriate response activities when the Administrator or Secretary determines that any oil is discharged or there is a substantial threat of such discharge from any vessel or offshore or onshore facility into or on the navigable waters of the United States, on the adjoining shorelines to the navigable waters, into or on the waters of the exclusive economic zone, or that may affect natural resources belonging to, appertaining to, or under exclusive management authority of the United States.
(c) In addition to any actions taken by a state or local government, the Administrator of EPA or the Secretary of the department in which the USCG is operating may request the U.S. Attorney General to secure the relief from any person, including the owner or operator of the vessel or facility necessary to abate a threat or, after notice to the affected state, take any other action authorized by section 311 of the CWA, including issuing administrative orders, that may be necessary to protect the public health or welfare, if the Administrator or Secretary determines that there may be an imminent and substantial threat to the public health or welfare or the environment of the United States, including fish, shellfish, and wildlife, public and private property, shorelines, beaches, habitats, and other living and nonliving natural resources under the jurisdiction or control of the United States, because of an actual or threatened discharge of oil from any vessel or offshore or onshore facility into or upon the navigable waters of the United States.
(d) Response actions to remove discharges originating from operations conducted subject to the Outer Continental Shelf Lands Act shall be in accordance with the NCP.
(e) Where appropriate, when a discharge involves radioactive materials, the lead or support federal agency shall act consistent with the notification and assistance procedures described in the appropriate Federal Radiological Plan. For the purpose of the NCP, the Federal Radiological Emergency Response Plan (FRERP) (50 FR 46542, November 8, 1985) is the appropriate plan. Most radiological discharges and releases do not result in FRERP activation and should be handled in accordance with the NCP. However, releases from nuclear incidents subject to requirements for financial protection established by the Nuclear Regulatory Commission under the Price-Anderson amendments (section 170) of the Atomic Energy Act are specifically excluded from CERCLA and NCP requirements.
(f) Removal actions involving nuclear weapons should be conducted in accordance with the joint Department of Defense, Department of Energy, and FEMA Agreement for Response to Nuclear Incidents and Nuclear Weapons Significant Incidents (January 8, 1981).
(g) If the situation is beyond the capability of state and local governments and the statutory authority of federal agencies, the President may, under the Disaster Relief Act of 1974, act upon a request by the Governor and declare a major disaster or emergency and appoint a FCO to coordinate all federal disaster assistance activities. In such cases, the OSC would continue to carry out OSC responsibilities under the NCP, but would coordinate those activities with the FCO to ensure consistency with other federal disaster assistance activities.
(h) In the event of a declaration of a major disaster by the President, FEMA may activate the FRP. An FCO, designated by the President, may implement the FRP and coordinate and direct emergency assistance and disaster relief of impacted individuals, business, and public services under the Robert T. Stafford Disaster Relief Act. Delivery of federal assistance is facilitated through twelve functional annexes to the FRP known as ESFs. EPA coordinates activities under ESF #10—Hazardous Materials, which addresses preparedness and response to hazardous materials and oil incidents caused by a natural disaster or other catastrophic event. In such cases, the OSC/RPM should coordinate response activities with the FCO, through the incident-specific ESF #10 Chair, to ensure consistency with federal disaster assistance activities.
(1) Investigate the report to determine pertinent information such as the threat posed to public health or welfare or the environment, the type and quantity of polluting material, and the source of the discharge.
(2) Officially classify the size (
(A) When the reported discharge is an actual or potential major discharge, the OSC shall immediately notify the RRT and the NRC.
(B) When the investigation shows that an actual or potential medium discharge exists, the OSC shall recommend activation of the RRT, if appropriate.
(C) When the investigation shows that an actual or potential minor discharge exists, the OSC shall monitor the situation to ensure that proper removal action is being taken.
(3) If the OSC determines that effective and immediate removal, mitigation, or prevention of a discharge can be achieved by private party efforts, and where the discharge does not pose a substantial threat to the public health or welfare, determine whether the responsible party or other person is properly carrying out removal. Removal is being done properly when:
(A) The responsible party is applying the resources called for in its response plan to effectively and immediately remove, minimize, or mitigate threat(s) to public health and welfare and the environment; and
(B) The removal efforts are in accordance with applicable regulations, including the NCP. Even if the OSC supplements responsible party resources with government resources, the spill response will not be considered improper, unless specifically determined by the OSC.
(4) Where appropriate, determine whether a state or political subdivision thereof has the capability to carry out any or all removal actions. If so, the OSC may arrange funding to support these actions.
(5) Ensure prompt notification of the trustees of affected natural resources in accordance with the applicable RCP and ACP.
(b) Removal shall be considered complete when so determined by the OSC in consultation with the Governor or Governors of the affected states. When the OSC considers removal complete, OSLTF removal funding shall end. This determination shall not preclude additional removal actions under applicable state law.
(b) As appropriate, actions shall be taken to recover the oil or mitigate its effects. Of the numerous chemical or physical methods that may be used, the chosen methods shall be the most consistent with protecting public health and welfare and the environment. Sinking agents shall not be used.
(c) Oil and contaminated materials recovered in cleanup operations shall be disposed of in accordance with the RCP, ACP, and any applicable laws, regulations, or requirements. RRT and Area Committee guidelines may identify the disposal options available during an oil spill response and may describe what disposal requirements are mandatory or may not be waived by the OSC. ACP guidelines should address: the sampling, testing, and classifying of recovered oil and oiled debris; the segregation and stockpiling of recovered oil and oiled debris; prior state disposal approvals and permits; and the routes; methods (e.g. recycle/reuse, on-site burning, incineration, landfilling, etc.); and sites for the disposal of collected oil, oiled debris, and animal carcasses; procedures for obtaining waivers, exemptions, or authorizations associated with handling or transporting waste materials. The ACPs may identify a hierachy of preferences for disposal alternatives, with recycling (reprocessing) being the most preferred, and other alternatives preferred based on priorities for health or the environment.
(b) If the investigation by the OSC shows that the discharge poses or may present a substantial threat to public health or welfare, the OSC shall direct all federal, state, or private actions to remove the discharge or to mitigate or prevent the threat of such a discharge, as appropriate. In directing the response in such cases, the OSC may act without regard to any other provision of law
(1) Remove or arrange for the removal of the discharge;
(2) Mitigate or prevent the substantial threat of the discharge; and
(3) Remove and, if necessary, destroy a vessel discharging, or threatening to discharge, by whatever means are available.
(c) In the case of a substantial threat to the public health or welfare, the OSC shall:
(1) Assess opportunities for the use of various special teams and other assistance, including the use of the services of the NSFCC, as appropriate;
(2) Request immediate activation of the RRT; and
(3) Take whatever additional response actions are deemed appropriate, including but not limited to implementation of the ACP or relevant tank vessel or facility response plan.
(d) When requested by the OSC, the lead agency or RRT shall dispatch appropriate personnel to the scene of the discharge to assist the OSC. This assistance may include technical support in the agency's areas of expertise and disseminating information to the public. The lead agency shall ensure that a contracting officer is available on scene, at the request of the OSC.
(b) For an SONS in the inland zone, the EPA Administrator may name a senior Agency official to assist the OSC in: (1) Communicating with affected parties and the public; and (2) coordinating federal, state, local, and international resources at the national level. This strategic coordination will involve, as appropriate, the NRT, RRT(s), the Governor(s) of affected state(s), and the mayor(s) or other chief executive(s) of local government(s).
(c) For an SONS in the coastal zone, the USCG Commandant may name a National Incident Commander (NIC) who will assume the role of the OSC in: (1) Communicating with affected parties and the public; and (2) coordinating federal, state, local, and international resources at the national level. This strategic coordination shall involve, as appropriate, the NRT, RRT(s), the Governor(s) of affected state(s), and the mayor(s) or other chief executive(s) of local government(s).
(1) Notify the NSFCC;
(2) Require, where applicable, implementation of the worst case portion of an approved tank vessel or facility response plan;
(3) Implement the worst case portion of the ACP, if appropriate; and
(4) Take whatever additional response actions are deemed appropriate.
(b) Under the direction of the OSC, the NSFCC shall coordinate use of private and public personnel and equipment, including strike teams, to remove a worst case discharge and mitigate or prevent a substantial threat of such a discharge.
(b) There shall be only one OSC at any time during the course of a response operation. Should a discharge affect two or more areas, EPA, the USCG, DOD, DOE, or other lead agency, as appropriate, shall give prime consideration to the area vulnerable to the greatest threat, in determining which agency should provide the OSC. The RRT shall designate the OSC if the RRT member agencies who have response authority within the affected areas are unable to agree on the designation. The NRT shall designate the OSC if members of one RRT or two adjacent RRTs are unable to agree on the designation.
(b) In a response action taken by a responsible party, the responsible party must assure that an occupational safety and health program consistent with 29 CFR 1910.120 is made available for the protection of workers at the response site.
(c) In a response taken under the NCP by a lead agency, an occupational safety and health program should be made available for the protection of workers at the response site, consistent with, and to the extent required by, 29 CFR 1910.120. Contracts relating to a response action under the NCP should contain assurances that the contractor at the response site will comply with this program and with any applicable provisions of the Occupational Safety and Health Act of 1970 (OSH Act) and state laws with plans approved under section 18 of the OSH Act.
(d) When a state, or political subdivision of a state, without an OSHA-approved state plan is the lead agency for response, the state or political subdivision must comply
(e) Requirements, standards, and regulations of the OSH Act and of state OSH laws not directly referenced in paragraphs (a) through (d) of this section, must be complied with where applicable. Federal OSH Act requirements include, among other things, Construction Standards (29 CFR part 1926), General Industry Standards (29 CFR part 1910), and the general duty requirement of section 5(a)(1) of the OSH Act (29 U.S.C. 654(a)(1)). No action by the lead agency with respect to response activities under the NCP constitutes an exercise of statutory authority within the meaning of section 4(b)(1) of the OSH Act. All governmental agencies and private employers are directly responsible for the health and safety of their own employees.
Oil recovered in cleanup operations shall be disposed of in accordance with the RCP, ACP, and any applicable laws, regulations, or requirements. RRT and ACP guidelines may identify the disposal plans to be followed during an oil spill response and may address: the sampling, testing, and classifying of recovered oil and oiled debris; the segregation and stockpiling of recovered oil and oiled debris; prior state disposal approvals and permits; and the routes; methods (e.g., recycle/reuse, on-site burning, incineration, landfilling, etc.); and sites for the disposal of collected oil, oiled debris, and animal carcasses.
(1) Conduct a preliminary survey of the area affected by the discharge to determine if trust resources under their jurisdiction are, or potentially may be, affected;
(2) Cooperate with the OSC in coordinating assessments, investigations, and planning;
(3) Carry out damage assessments; or
(4) Devise and carry out a plan for restoration, rehabilitation, replacement, or acquisition of equivalent natural resources. In assessing damages to natural resources, the federal, state, and Indian tribe trustees have the option of following the procedures for natural resource damage assessments located at 43 CFR part 11.
(b) Upon notification or discovery of injury to, destruction of, loss of, or loss of use of, natural resources, or the potential for such, resulting from a discharge of oil occurring after August 18, 1990, the trustees, pursuant to section 1006 of the OPA, are to take the following actions:
(1) In accordance with OPA section 1006(c), determine the need for assessment of natural resource damages, collect data necessary for a potential damage assessment, and, where appropriate, assess damages to natural resources under their trusteeship; and
(2) As appropriate, and subject to the public participation requirements of OPA section 1006(c), develop and implement a plan for the restoration, rehabilitation, replacement, or acquisition of the equivalent, of the natural resources under their trusteeship.
(c)(1) The trustees, consistent with procedures specified in the Fish and Wildlife and Sensitive Environments Annex to the Area Contingency Plan, shall provide timely advice on recommended actions concerning trustee resources that are potentially affected by a discharge of oil. This may include providing assistance to the OSC in identifying/recommending pre-approved response techniques and in predesignating shoreline types and areas in ACPs.
(2) The trustees shall assure, through the lead administrative trustee, that the OSC is informed of their activities regarding natural resource damage assessment that may affect response operations in order to assure coordination and minimize any interference with such operations. The trustees shall assure, through the lead administrative trustee, that all data from the natural resource damage assessment activities that may support more effective operational decisions are provided in a timely manner to the OSC.
(3) The OSC deploys federal response resources, including but not limited to aircraft, vessels, and booms to contain and remove discharged oil. When circumstances permit, the OSC shall share the use of federal response resources with the trustees, providing trustee activities do not interfere with response actions. The lead administrative trustee facilitates effective and efficient communication between the OSC and the other trustees during response operations and is responsible for applying to the OSC for non-monetary federal response resources on behalf of all trustees. The lead administrative trustee is also responsible for applying to the National Pollution Funds Center for funding for initiation of damage assessment for injuries to natural resources.
(d) The authority of federal trustees includes, but is not limited to the following actions:
(1) Requesting that the Attorney General seek compensation from the responsible parties for the damages assessed and for the costs of an assessment and of restoration planning;
(2) Participating in negotiations between the United States and potentially responsible parties (PRPs) to obtain PRP-financed
(3) Initiating damage assessments, as provided in OPA section 6002.
(e) Actions which may be taken by any trustee pursuant to section 311(f)(5) of the CWA or section 1006 of the OPA include, but are not limited to, any of the following:
(1) Requesting that an authorized agency issue an administrative order or pursue injunctive relief against the parties responsible for the discharge; or
(2) Requesting that the lead agency remove, or arrange for the removal of any oil from a contaminated medium pursuant to section 311 of the CWA.
(b) The trustees will provide timely advice concerning recommended actions with regard to trustee resources that are potentially affected. This may include providing assistance to the OSC in identifying/recommending pre-approved response techniques, and in predesignating shoreline types and areas in ACPs.
(c) The trustees also will assure that the OSC is informed of their activities regarding natural resource damage assessment that may affect response operations.
(b) An on-scene news office may be established to coordinate media relations and to issue official federal information on an incident. Whenever possible, it will be headed by a representative of the lead agency. The OSC determines the location of the on-scene news office, but every effort should be made to locate it near the scene of the incident. If a participating agency believes public interest warrants the issuance of statements and an on-scene news office has not been established, the affected agency should recommend its establishment. All federal news releases or statements by participating agencies should be cleared through the OSC. Information dissemination relating to natural resource damage assessment activities shall be coordinated through the lead administrative trustee. The designated lead administrative trustee may assist the OSC by disseminating information on issues relating to damage assessment activities. Following termination of the removal activity, information dissemination on damage assessment activities shall be through the lead administrative trustee.
(b) Trustees are responsible for designating to the RRTs and the Area Committees, for inclusion in the RCP and the ACP, appropriate contacts to receive notifications from the OSCs of discharges.
(c)(1) Upon notification or discovery of injury to, destruction of, loss of, or threat to natural resources, trustees may, pursuant to section 311(f)(5) of the CWA, take the following or other actions as appropriate:
(A) Conduct a preliminary survey of the area affected by the discharge or release to determine if trust resources under their jurisdiction are, or potentially may be, affected;
(B) Cooperate with the OSC in coordinating assessments, investigations, and planning;
(C) Carry out damage assessments; or
(D) Devise and carry out a plan for restoration, rehabilitation, replacement, or acquisition of equivalent natural resources. In assessing damages to natural resources, the federal, state, and Indian tribe trustees have the option of following the procedures for natural resource damage assessments located at 43 CFR part 11.
(2) Upon notification or discovery of injury to, destruction of, loss of, or loss of use of, natural resources, or the potential for such, resulting from a discharge of oil occurring after August 18, 1990, the trustees, pursuant to section 1006 of the OPA, are to take the following actions:
(A) In accordance with OPA section 1006(c), determine the need for assessment of natural resource damages, collect data necessary for a potential damage assessment, and, where appropriate, assess damages to natural resources under their trusteeship; and
(B) As appropriate, and subject to the public participation requirements of OPA section 1006(c), develop and implement a plan for the restoration, rehabilitation, replacement, or acquisition of the equivalent, of the natural resources under their trusteeship;
(3)(A) The trustees, consistent with procedures specified in the Fish and Wildlife and Sensitive Environments Annex to the Area Contingency Plan, shall provide timely advice on recommended actions concerning trustee resources that are potentially affected by a discharge of oil. This may include providing assistance to the OSC in identifying/recommending pre-approved response techniques and in predesignating shoreline types and areas in ACPs.
(B) The trustees shall assure, through the lead administrative trustee, that the OSC is informed of their activities regarding natural resource damage assessment that may affect response operations in order to assure coordination and minimize any interference with such operations. The trustees shall assure, through the lead administrative trustee, that all data from the natural resource damage assessment activities that may support more effective operational decisions are provided in a timely manner to the OSC.
(C) When circumstances permit, the OSC shall share the use of federal response resources (including but not limited to aircraft, vessels, and booms to contain and remove discharged oil) with the trustees, providing trustee activities do not interfere with response actions. The lead administrative trustee facilitates effective and efficient communication between the OSC and the other trustees during response operations and is responsible for applying to the OSC for non-monetary federal response resources on behalf of all trustees. The lead administrative trustee also is responsible for applying to the National Pollution Funds Center for funding for initiation of damage assessment for injuries to natural resources.
(d) The authority of federal trustees includes, but is not limited to the following actions:
(1) Requesting that the Attorney General seek compensation from the responsible parties for the damages assessed and for the costs of an assessment and of restoration planning; and
(2) Initiating damage assessments, as provided in OPA section 6002.
(e) Actions which may be taken by any trustee pursuant to section 1006 of the OPA include, but are not limited to, any of the following:
(1) Requesting that an authorized agency issue an administrative order or pursue injunctive relief against the parties responsible for the discharge or release; or
(2) Requesting that the lead agency remove, or arrange for the removal of, or provide for remedial action with respect to, any oil from a contaminated medium pursuant to section 311 of CWA.
(b) Response actions other than removal, such as scientific investigations not in support of removal actions or law enforcement, shall be provided by the agency with legal responsibility for those specific actions.
(c) The funding of a response to a discharge from a federally owned, operated, or supervised facility or vessel is the responsibility of the owning, operating, or supervising agency if it is a responsible party.
(d) The following agencies have funds available for certain discharge removal actions:
(1) DOD has two specific sources of funds that may be applicable to an oil discharge under appropriate circumstances. This does not consider military resources that might be made available under specific conditions.
(i) Funds required for removal of a sunken vessel or similar obstruction of navigation are available to the Corps of Engineers through Civil Works Appropriations, Operations and Maintenance, General.
(ii) The U.S. Navy (USN) may conduct salvage operations contingent on defense operational commitments, when funded by the requesting agency. Such funding may be requested on a direct cite basis.
(2) Pursuant to Title I of the OPA, the state or states affected by a discharge of oil may act where necessary to remove such discharge. Pursuant to 33 CFR subchapter M, states may be reimbursed from the OSLTF for the reasonable costs incurred in such a removal.
(b) Anyone desiring to file a claim against the OSLTF may obtain general information on the procedure for filing a claim from the Director, National Pollution Funds Center, Suite 1000, 4200 Wilson Boulevard, Arlington, Virginia, 22203-1804, (703) 235-4756.
(a) All OSLTF users need to collect and maintain documentation to support all actions taken under the CWA. In general, documentation shall be sufficient to support full cost recovery for resources utilized and shall identify the source and circumstances of the incident, the responsible party or parties, and impacts and potential impacts to public health and welfare and the environment. Documentation procedures are contained in 33 CFR subchapter M.
(b) When appropriate, documentation shall also be collected for scientific understanding of the environment and for research and development of improved response methods and technology. Funding for these actions is restricted by section 6002 of the OPA.
(c) As requested by the NRT or RRT, the OSC shall submit to the NRT or RRT a complete report on the removal operation and the actions taken. The OSC report shall record the situation as it developed, the actions taken, the resources committed, and the problems encountered. The RRT shall review the OSC report with its comments or recommendations within 30 days after the RRT has received the OSC report.
(d) OSCs shall ensure the necessary collection and safeguarding of information, samples, and reports. Samples and information shall be gathered expeditiously during the response to ensure an accurate record of the impacts incurred. Documentation materials shall be made available to the trustees of affected natural resources. The OSC shall make available to the trustees of affected natural resources information and documentation in the OSC's possession that can assist the trustees in the determination of actual or potential natural resource injuries.
(e) Information and reports obtained by the EPA or USCG OSC shall be transmitted to the appropriate offices responsible for follow-up actions.
(a) Safety of human life must be given the top priority during every response action. This includes any search and rescue efforts in the general proximity of the discharge and the insurance of safety of response personnel.
(b) Stabilizing the situation to preclude the event from worsening is the next priority. All efforts must be focused on saving a vessel that has been involved in a grounding, collision, fire, or explosion, so that it does not compound the problem. Comparable measures should be taken to stabilize a situation involving a facility, pipeline, or other source of pollution. Stabilizing the situation includes securing the source of the spill and/or removing the remaining oil from the container (vessel, tank, or pipeline) to prevent additional oil spillage, to reduce the need for follow-up response action, and to minimize adverse impact to the environment.
(c) The response must use all necessary containment and removal tactics in a coordinated manner to ensure a timely, effective response that minimizes adverse impact to the environment.
(d) All parts of this national response strategy should be addressed concurrently, but safety and stabilization are the highest priorities. The OSC should not delay containment and removal decisions unnecessarily and should take actions to minimize adverse impact to the environment that begin as soon as a discharge occurs, as well as actions to minimize further adverse environmental impact from additional discharges.
(e) The priorities set forth in this section are broad in nature, and should not be interpreted to preclude the consideration of other priorities that may arise on a site-specific basis.
(b) The technical and scientific information generated by the local community, along with information from federal, state, and local governments, should be used to assist the OSC in devising response strategies where effective standard techniques are unavailable. Such information and strategies will be incorporated into the ACP, as appropriate. The SSC may act as liaison between the OSC and such interested organizations.
(c) ACPs shall establish procedures to allow for well organized, worthwhile, and safe use of volunteers, including compliance with requirements regarding worker health and safety. ACPs should provide for the direction of volunteers by the OSC or by other federal, state, or local officials knowledgeable in contingency operations and capable of providing leadership. ACPs also should
(d) Nongovernmental participation must be in compliance with the requirements of subpart H of the NCP if any recovery of costs will be sought.
(b) The following individuals shall be the designated trustee(s) for general categories of natural resources, including their supporting ecosystems. They are authorized to act pursuant to section 1006 of the OPA when there is injury to, destruction of, loss of, or threat to natural resources, including their supporting ecosystems as a result of a discharge of oil. Notwithstanding the other designations in this section, the Secretaries of Commerce and the Interior shall act as trustees of those resources subject to their respective management or control.
(1) The Secretary of Commerce shall act as trustee for natural resources managed or controlled by DOC and for natural resources managed or controlled by other federal agencies and that are found in, under, or using waters navigable by deep draft vessels, tidally influenced waters or waters of the contiguous zone, the exclusive economic zone, and the outer continental shelf. However, before the Secretary takes an action with respect to an affected resource under the management or control of another federal agency, he shall, whenever practicable, seek to obtain concurrence of that other federal agency. Examples of the Secretary's trusteeship include the following natural resources and their supporting ecosystems: marine fishery resources; anadromous fish; endangered species and marine mammals; and the resources of National Marine Sanctuaries and National Estuarine Research Reserves.
(2) The Secretary of the Interior shall act as trustee for natural resources managed or controlled by DOI. Examples of the Secretary's trusteeship include the following natural resources and their supporting ecosystems: migratory birds; anadromous fish; endangered species and marine mammals; federally owned minerals; and certain federally managed water resources. The Secretary of the Interior shall also be trustee for those natural resources for which an Indian tribe would otherwise act as trustee in those cases where the United States acts on behalf of the Indian tribe.
(3) Secretary for the land managing agency. For natural resources located on, over, or under land administered by the United States, the trustee shall be the head of the department in which the land managing agency is found. The trustees for the principal federal land managing agencies are the Secretaries of DOI, USDA, DOD, and DOE.
(4) Head of Authorized Agencies. For natural resources located within the United States but not otherwise described in this section, the trustee is the head of the federal agency or agencies authorized to manage or control those resources.
(b) The Governor of a state is encouraged to designate a lead state trustee to coordinate all state trustee responsibilities with other trustee agencies and with response activities of the RRT and OSC. The state's lead trustee would designate a representative to serve as a contact with the OSC. This individual should have ready access to appropriate state officials with environmental protection, emergency response, and natural resource responsibilities. The EPA Administrator or USCG Commandant or their designees may appoint the lead state trustee as a member of the Area Committee. Response strategies should be coordinated between the state and other trustees and the OSC for specific natural resource locations in an inland or coastal zone, and should be included in the Fish and Wildlife and Sensitive Environments Plan annex of the ACP.
(a) Federal agencies listed in this appendix have duties established by statute, executive order, or Presidential directive which may apply to federal response actions following, or in prevention of, the discharge of oil. Some of these agencies also have duties relating to the restoration, rehabilitation, replacement, or acquisition of equivalent natural resources injured or lost as a result of such discharge. The NRT, RRT, and Area Committee organizational structure, and the NCP, RCPs, and ACPs provide for agencies to coordinate with each other in carrying out these duties.
(b) Federal agencies may be called upon by an OSC during response planning and implementation to provide assistance in their respective areas of expertise, consistent with the agencies' capabilities and authorities.
(c) In addition to their general responsibilities, federal agencies should:
(1) Make necessary information available to the Secretary of the NRT, RRTs, Area Committees, and OSCs;
(2) Provide representatives to the NRT and RRTs and otherwise assist RRTs and OSCs, as necessary, in formulating RCPs and ACPs; and
(3) Inform the NRT, RRTs, and Area Committees consistent with national security considerations, of changes in the availability of resources that would affect the operations implemented under the NCP.
(d) All federal agencies must report discharges of oil, as required in 40 CFR part 110, from vessels or facilities under their jurisdiction or control to the NRC.
(a) The United States Army Corps of Engineers has specialized equipment and personnel for maintaining navigation channels, for removing navigation obstructions, for accomplishing structural repairs, and for performing maintenance to hydropower electric generating equipment. The Corps can also provide design services, perform construction, and provide contract writing and contract administrative services for other federal agencies.
(b) The U.S. Navy Supervisor of Salvage (SUPSLAV) is the branch of the service within DOD most knowledgeable and experienced in ship salvage, shipboard damage control, and diving. The USN has an extensive array of specialized equipment and personnel available for use in these areas as well as specialized containment, collection, and removal equipment specifically designed for salvage-related and open-sea pollution incidents.
(b) The principal HHS response comes from the U.S. Public Health Service and is coordinated from the Office of the Assistant Secretary for Health, and various Public Health Service regional offices. Within the Public Health Service, the primary response to a
(c) Other Public Health Service agencies involved in support during hazardous materials incidents either directly or through ATSDR/CDC include the Food and Drug Administration, the Health Resources and Services Administration, the Indian Health Service, and the National Institutes of Health.
(d) Statutory authority for HHS/National Institutes for Environmental Health Sciences (NIEHS) involvement in hazardous materials accident prevention is non-regulatory in nature and focused on two primary areas for preventing community and worker exposure to hazardous materials releases: (1) worker safety training and (2) basic research activities. Under section 126 of the SARA, NIEHS is given statutory authority for supporting development of curricula and model training programs for waste workers and chemical emergency responders. Under section 118(b) of the Hazardous Materials Transportation and Uniform Safety Act, NIEHS also administers the Hazmat Employee Training Program to prepare curricula and training for hazardous materials transportation workers. In the basic research arena, NIEHS is authorized under section 311 of SARA to conduct a hazardous substance basic research and training program to evaluate toxic effects and assess human health risks from accidental releases of hazardous materials. Under Title IX, section 901(h) of the Clean Air Act Amendments, NIEHS also is authorized to conduct basic research on air pollutants, as well as train physicians in environmental health. Federal research and training in hazardous materials release prevention represents an important non-regulatory activity and supplements ongoing private sector programs.
(a) United States Fish and Wildlife Service and other Bureaus: Anadromous and certain other fishes and wildlife, including endangered and threatened species, migratory birds, and certain marine mammals; waters and wetlands; and effects on natural resources.
(b) The National Biological Survey performs research in support of biological resource management; inventories, monitors, and reports on the status and trends in the Nation's biotic resources; and transfers the information gained in research and monitoring to resource managers and others concerned with the care, use, and conservation of the Nation's natural resources. The National Biological Survey has laboratory/research facilities.
(c) Geological Survey: Geology, hydrology (ground water and surface water), and natural hazards.
(d) Bureau of Land Management: Minerals, soils, vegetation, wildlife, habitat, archaeology, and wilderness.
(e) Minerals Management Service: Oversight of offshore oil and gas exploration and production facilities and associated pipeline facilities under the Outer Continental Shelf Lands Act and the CWA; oil spill response technology research; and establishing oil discharge contingency planning requirements for offshore facilities.
(f) Bureau of Mines: Analysis and identification of inorganic hazardous substances and technical expertise in metals and metallurgy relevant to site cleanup.
(g) Office of Surface Mining: Coal mine wastes and land reclamation.
(h) National Park Service: General biological, natural, and cultural resource managers to evaluate, measure, monitor, and contain threats to park system lands and resources; archaeological and historical expertise in protection, preservation, evaluation, impact mitigation, and restoration of cultural resources; emergency personnel.
(i) Bureau of Reclamation: Operation and maintenance of water projects in the West; engineering and hydrology; and reservoirs.
(j) Bureau of Indian Affairs: Coordination of activities affecting Indian lands; assistance in identifying Indian tribal government officials.
(k) Office of Territorial Affairs: Assistance in implementing the NCP in American Somoa, Guam, the Pacific Island Governments, the Northern Mariana Islands, and the Virgin Islands.
(a) Safety and health standards and regulations promulgated by OSHA (or the states) in accordance with section 126 of SARA and all other applicable standards; and
(b) Regulations promulgated under the OSH Act and its general duty clause. OSHA inspections may be self-generated, consistent with its program operations and objectives, or may be conducted in response to requests from EPA or another lead agency, or in response to accidents or employee complaints. On request, OSHA shall provide advice and consultation to EPA and other NRT/RRT agencies as well as to the OSC regarding hazards to persons engaged in response activities. OSHA may also take any other action necessary to assure that employees are properly protected at such response activities. Any questions about occupational safety and health at these sites may be referred to the OSHA Regional Office.
(a) Each state Governor is requested to designate one state office/representative to represent the state on the appropriate RRT. The state's office/representative may participate fully in all activities of the appropriate RRT. Each state Governor is also requested to designate a lead state agency that shall direct state-lead response operations. This agency is responsible for designating the OSC for state-lead response actions, and coordinating/communicating with any other state agencies, as appropriate. Local governments are invited to participate in activities on the appropriate RRT as may be provided by state law or arranged by the state's representative. Indian tribes wishing to participate should assign one person or office to represent the tribal government on the appropriate RRT.
(b) Appropriate state and local officials (including Indian tribes) shall participate as part of the response structure as provided in the ACP.
(c) In addition to meeting the requirements for local emergency plans under SARA section 303, state and local government agencies are encouraged to include contingency planning for responses, consistent with the NCP, RCP, and ACP in all emergency and disaster planning.
(d) For facilities not addressed under the CWA for oil discharges, states are encouraged to undertake response actions themselves or to use their authorities to compel
(e) Because state and local public safety organizations would normally be the first government representatives at the scene of a discharge or release, they are expected to initiate public safety measures that are necessary to protect the public health and welfare and that are consistent with containment and cleanup requirements in the NCP, and are responsible for directing evacuations pursuant to existing state or local procedures.
42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and 1361.
This regulation designates under section 102(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“the Act”) those substances in the statutes referred to in section 101(14) of the Act, identifies reportable quantities for these substances, and sets forth the notification requirements for releases of these substances. This regulation also sets forth reportable quantities for hazardous substances designated under section 311(b)(2)(A) of the Clean Water Act.
As used in this part, all terms shall have the meaning set forth below:
(1) Any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons;
(2) Emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine;
(3) Release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954, if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under section 170 of such Act, or for the purposes of section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act or any other response action, any release of source, byproduct, or special nuclear material from any processing site designated under section 102(a)(1) or 302(a) of the Uranium Mill Tailings Radiation Control Act of 1978; and
(4) The normal application of fertilizer;
(a)
(b)
The numbers under the column headed “CASRN” are the Chemical Abstracts Service Registry Numbers for each hazardous substance. The “Statutory Code” column indicates the statutory source for designating each substance as a CERCLA hazardous substance: “1” indicates that the statutory source is section 311(b)(2) of the Clean Water Act, “2” indicates that the source is section 307(a) of the Clean Water Act, “3” indicates that the source is section 112 of the Clean Air Act, and “4” indicates that the source is section 3001 of the Resource Conservation and Recovery Act (RCRA). The “RCRA Waste Number” column provides the waste identification numbers assigned to various substances by RCRA regulations. The “Pounds (kg)” column provides the reportable quantity adjustment for each hazardous substance in pounds and kilograms. Appendix A to § 302.4, which lists CERCLA hazardous substances in sequential order by CASRN, provides a per-substance grouping of regulatory synonyms (
For
(a)
(b)
(a) Any person in charge of a vessel or an offshore or an onshore facility shall, as soon as he or she has knowledge of any release (other than a federally permitted release or application of a pesticide) of a hazardous substance from such vessel or facility in a quantity equal to or exceeding the reportable quantity determined by this part in any 24-hour period, immediately notify the National Response Center ((800) 424-8802; in Washington, DC (202) 426-2675 or (202) 267-2675; the facsimile
(b) Releases of mixtures or solutions (including hazardous waste streams) of
(1) Hazardous substances, except for radionuclides, are subject to the following notification requirements:
(i) If the quantity of all of the hazardous constituent(s) of the mixture or solution is known, notification is required where an RQ or more of any hazardous constituent is released;
(ii) If the quantity of one or more of the hazardous constituent(s) of the mixture or solution is unknown, notification is required where the total amount of the mixture or solution released equals or exceeds the RQ for the hazardous constituent with the lowest RQ; or
(iii) For waste streams K169, K170, K171, K172, K174, and K175, knowledge of the quantity of all of the hazardous constituent(s) may be assumed, based on the following maximum observed constituent concentrations identified by EPA:
(2) Radionuclides are subject to this section's notification requirements only in the following circumstances:
(i) If the identity and quantity (in curies) of each radionuclide in a released mixture or solution is known, the ratio between the quantity released (in curies) and the RQ for the radionuclide must be determined for each radionuclide. The only such releases subject to this section's notification requirements are those in which the sum of the ratios for the radionuclides in the mixture or solution released is equal to or greater than one.
(ii) If the identity of each radionuclide in a released mixture or solution is known but the quantity released (in curies) of one or more of the radionuclides is unknown, the only such releases subject to this section's notification requirements are those in which the total quantity (in curies) of the mixture or solution released is equal to or greater than the lowest RQ of any individual radionuclide in the mixture or solution.
(iii) If the identity of one or more radionuclides in a released mixture or solution is unknown (or if the identity of a radionuclide released by itself is unknown), the only such releases subject to this section's notification requirements are those in which the total quantity (in curies) released is equal to or greater than either one curie or the lowest RQ of any known individual radionuclide in the mixture or solution, whichever is lower.
(c) The following categories of releases are exempt from the notification requirements of this section:
(1) Releases of those radionuclides that occur naturally in the soil from land holdings such as parks, golf courses, or other large tracts of land.
(2) Releases of naturally occurring radionuclides from land disturbance activities, including farming, construction, and land disturbance incidental to extraction during mining activities, except that which occurs at uranium, phosphate, tin, zircon, hafnium, vanadium, monazite, and rare earth mines. Land disturbance incidental to extraction includes: land clearing; overburden removal and stockpiling; excavating, handling, transporting, and storing ores and other raw (not beneficiated or processed) materials; and replacing in mined-out areas coal ash, earthen materials from farming or construction, or overburden or other raw materials generated from the exempted mining activities.
(3) Releases of radionuclides from the dumping and transportation of coal and coal ash (including fly ash, bottom ash, and boiler slags), including the dumping and land spreading operations that occur during coal ash uses.
(4) Releases of radionuclides from piles of coal and coal ash, including fly ash, bottom ash, and boiler slags.
(d) Except for releases of radionuclides, notification of the release of an RQ of solid particles of antimony, arsenic, beryllium, cadmium, chromium, copper, lead, nickel, selenium, silver, thallium, or zinc is not required if the mean diameter of the particles released is larger than 100 micrometers (0.004 inches).
(e) The following releases are exempt from the notification requirements of this section:
(1) Releases in amounts less than 1,000 pounds per 24 hours of nitrogen oxide to the air which are the result of combustion and combustion-related activities.
(2) Releases in amounts less than 1,000 pounds per 24 hours of nitrogen dioxide to the air which are the result of combustion and combustion-related activities.
(3) Releases to the air of any hazardous substance from animal waste at farms.
(a) Any person—
(1) In charge of a vessel from which a hazardous substance is released, other than a federally permitted release, into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone,
(2) In charge of a vessel from which a hazardous substance is released, other than a federally permitted release, which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States (including resources under the Fishery Conservation and Management Act of 1976), and who is otherwise subject to the jurisdiction of the United States at the time of the release, or
(3) In charge of a facility from which a hazardous substance is released, other than a federally permitted release, in a quantity equal to or greater than that reportable quantity determined under this part who fails to notify immediately the National Response Center as soon as he or she has knowledge of such release or who submits in such a notification any information which he knows to be false or misleading shall be subject to all of the sanctions, including criminal penalties, set forth in section 103(b) of the Act.
(b) Notification received pursuant to this section or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.
(c) This section shall not apply to the application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act or to the handling and storage of such a pesticide product by an agricultural producer.
(a) Except as provided in paragraph (c) of this section, no notification is required for any release of a hazardous substance that is, pursuant to the definitions in paragraph (b) of this section, continuous and stable in quantity and rate.
(b)
(c)
(1) Initial telephone notification;
(2) Initial written notification within 30 days of the initial telephone notification;
(3) Follow-up notification within 30 days of the first anniversary date of the initial written notification;
(4) Notification of a change in the composition or source(s) of the release or in the other information submitted in the initial written notification of the release under paragraph (c)(2) of this section or the follow-up notification under paragraph (c)(3) of this section; and
(5) Notification at such times as an increase in the quantity of the hazardous substance being released during any 24-hour period represents a statistically significant increase as defined in paragraph (b) of this section.
(d)
(1) Using release data, engineering estimates, knowledge of operating procedures, or best professional judgment to establish the continuity and stability of the release;
(2) Reporting the release to the National Response Center for a period sufficient to establish the continuity and stability of the release; or
(3) When a person in charge of the facility or vessel believes that a basis has been established to qualify the release for reduced reporting under this section, initial notification to the National Response Center shall be made by telephone. The person in charge must identify the notification as an initial continuous release notification report and provide the following information:
(i) The name and location of the facility or vessel; and
(ii) The name(s) and identity(ies) of the hazardous substance(s) being released.
(e)
(1) Initial written notification to the appropriate EPA Regional Office shall occur within 30 days of the initial telephone notification to the National Response Center, and shall include, for each release for which reduced reporting as a continuous release is claimed, the following information:
(i) The name of the facility or vessel; the location, including the latitude and longitude; the case number assigned by the National Response Center or the Environmental Protection Agency; the Dun and Bradstreet number of the facility, if available; the port of registration of the vessel; the name and telephone number of the person in charge of the facility or vessel.
(ii) The population density within a one-mile radius of the facility or vessel, described in terms of the following ranges: 0-50 persons, 51-100 persons, 101-500 persons, 501-1,000 persons, more than 1,000 persons.
(iii) The identity and location of sensitive populations and ecosystems within a one-mile radius of the facility or vessel (e.g., elementary schools, hospitals, retirement communities, or wetlands).
(iv) For each hazardous substance release claimed to qualify for reporting under CERCLA section 103(f)(2), the following information must be supplied:
(A) The name/identity of the hazardous substance; the Chemical Abstracts Service Registry Number for the substance (if available); and if the substance being released is a mixture, the components of the mixture and their approximate concentrations and quantities, by weight.
(B) The upper and lower bounds of the normal range of the release (in pounds or kilograms) over the previous year.
(C) The source(s) of the release (e.g., valves, pump seals, storage tank vents, stacks). If the release is from a stack, the stack height (in feet or meters).
(D) The frequency of the release and the fraction of the release from each release source and the specific period over which it occurs.
(E) A brief statement describing the basis for stating that the release is continuous and stable in quantity and rate.
(F) An estimate of the total annual amount that was released in the previous year (in pounds or kilograms).
(G) The environmental medium(a) affected by the release:
(
(
(
(
(H) A signed statement that the hazardous substance release(s) described is(are) continuous and stable in quantity and rate under the definitions in paragraph (b) of this section and that all reported information is accurate and current to the best knowledge of the person in charge.
(f)
(1) The name of the facility or vessel; the location, including the latitude and longitude; the case number assigned by the National Response Center or the Environmental Protection Agency; the Dun and Bradstreet number of the facility, if available; the port of registration of the vessel; the name and telephone number of the person in charge of the facility or vessel.
(2) The population density within a one-mile radius of the facility or vessel, described in terms of the following ranges: 0-50 persons, 51-100 persons, 101-500 persons, 501-1,000 persons, more than 1,000 persons.
(3) The identity and location of sensitive populations and ecosystems within a one-mile radius of the facility or vessel (e.g., elementary schools, hospitals, retirement communities, or wetlands).
(4) For each hazardous substance release claimed to qualify for reporting under CERCLA section 103(f)(2), the following information shall be supplied:
(i) The name/identity of the hazardous substance; the Chemical Abstracts Service Registry Number for the substance (if available); and if the substance being released is a mixture, the components of the mixture and their approximate concentrations and quantities, by weight.
(ii) The upper and lower bounds of the normal range of the release (in pounds or kilograms) over the previous year.
(iii) The source(s) of the release (e.g., valves, pump seals, storage tank vents, stacks). If the release is from a stack, the stack height (in feet or meters).
(iv) The frequency of the release and the fraction of the release from each release source and the specific period over which it occurs.
(v) A brief statement describing the basis for stating that the release is continuous and stable in quantity and rate.
(vi) An estimate of the total annual amount that was released in the previous year (in pounds or kilograms).
(vii) The environmental medium(a) affected by the release:
(A) If surface water, the name of the surface water body;
(B) If a stream, the stream order or average flowrate (in cubic feet/second) and designated use;
(C) If a lake, the surface area (in acres) and average depth (in feet or meters);
(D) If on or under ground, the location of public water supply wells within two miles.
(viii) A signed statement that the hazardous substance release(s) is(are) continuous and stable in quantity and rate under the definitions in paragraph (b) of this section and that all reported information is accurate and current to the best knowledge of the person in charge.
(g)
(1)
(2)
(i) Reporting at least one statistically significant increase report as required under paragraph (c)(7) of this section and, at the same time, informing the National Response Center of the change in the normal range; and
(ii) Submitting, within 30 days of the telephone notification, written notification to the appropriate EPA Regional Office describing the new normal range, the reason for the change, and the basis for stating that the release in the increased amount is continuous and stable in quantity and rate under the definitions in paragraph (b) of this section.
(3)
(4) Notification of changes shall include the case number assigned by the National Response Center or the Environmental Protection Agency and also the signed certification statement required at (c)(2)(xi) of this section.
(h)
(i)
(j)
(1) The population density within a one-mile radius of the facility or vessel, described in terms of the following ranges: 0-50 persons, 51-100 persons, 101-500 persons, 501-1,000 persons, more than 1,000 persons.
(2) The identity and location of sensitive populations and ecosystems within a one-mile radius of the facility or vessel (e.g., elementary schools, hospitals, retirement communities, or wetlands).
(3) For each hazardous substance release claimed to qualify for reporting under CERCLA section 103(f)(2), the following information must be supplied:
(i) The upper and lower bounds of the normal range of the release (in pounds or kilograms) over the previous year.
(ii) The frequency of the release and the fraction of the release from each release source and the specific period over which it occurs.
(iii) A brief statement describing the basis for stating that the release is continuous and stable in quantity and rate.
(iv) A signed statement that the hazardous substance release(s) is(are) continuous and stable in quantity and rate under the definitions in paragraph (b) of this section and that all reported information is accurate and current to the best knowledge of the person in charge.
(k)
(l)
(m)
42 U.S.C. 9609(d), Executive Order No. 12580.
This regulation implements the “citizen award” authority granted by Congress to the President in the 1986 Amendments to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), section 109(d). As authorized in the Superfund Amendments and Reauthorization Act of 1986 (SARA) section 109(c) and Executive Order No. 12580 (issued by the President on January 23, 1987), the Environmental Protection Agency is empowered to pay up to $10,000.00 from the Superfund to any individual who provides information leading to the arrest and conviction of any person for a violation subject to a criminal penalty under CERCLA as amended.
(a) Arrest. Restraint of an arrestee's liberty or the equivalent through the service of judicial process compelling such a person to respond to a criminal accusation.
(b) Conviction. A judgment of guilt entered in U.S. District Court, upon a verdict rendered by the court or petit jury or by a plea of guilty, including a plea of
(c) Individual. A natural person, not a corporation or other legal entity nor an association of persons.
(a) Failure to Give Required Notice of a Release of a Reportable Quantity of a Hazardous Substance, 42 U.S.C. 9603(a);
(b) Destruction or Concealment of Records Required under CERCLA to have been Retained, 42 U.S.C. 9603(d).
(a) Any individual, except law enforcement officers and persons convicted in the case giving rise to the award claim and any persons identified in § 303.20(b) shall be eligible to file a claim for an award as provided for in § 303.33 of this subpart.
(b) No person who was an employee of or contractor for the United States Environmental Protection Agency at the time he or she came into possession of the information disclosed to other Agency officials (or is so employed at the time of disclosure), which information constitutes in whole or part the basis for an award claim, shall be eligible to file a claim for an award.
(c) To be eligible for an award, the informant must disclose the identity of person(s) [or other pertinent information that leads to the expeditious disclosure of the identity of said person(s)] criminally culpable for the violations set forth in § 303.12 of subpart A. Disclosure of such pertinent information must be made to an employee, agent or representative of the United States Environmental Protection Agency.
The Agency's determinations as to eligibility and award amount shall constitute final Agency action as to either amount or eligibility. These determinations, consistent with the need to preserve from disclosure the identity of confidential informants (as noted in § 303.31) as well as to preserve from disclosure methods of Agency investigation, shall not be subject to administrative challenge by any person not making a claim to that award.
It is the Environmental Protection Agency's view that such determinations also would not be subject to judicial challenge by such person.
Upon the filing of an eligible claim in accordance with the procedures as set forth in § 303.33, the Agency's Assistant Administrator for Enforcement and Compliance Monitoring, or his Deputy for Criminal Enforcement, in making the decision to grant an award, and if so, in what amount, shall consider all relevant criteria, giving such weight and importance to each separate criterion as appears warranted in his judgment alone. Relevant criteria include one or more of the following:
(a) Whether the claimant's information constituted the initial, unsolicited notice to the Government of the violation;
(b) Whether the Government would readily have obtained knowledge of the violation in a timely manner absent claimant's information;
(c) Importance of the case, egregiousness of the violation, potential for or existence of environmental harm;
(d) Concealment of a person criminally culpable or existence of an organized criminal conspiracy to conceal the offense(s) committed by the named defendant(s);
(e) Willingness of the claimant to assist the Government's prosecution of the offense(s), which assistance includes providing further information and grand jury testimony, participating in trial preparation, and trial testimony if consistent with the limits on claimant identity disclosure as set forth in § 303.31.
(f) Value of the claimant's assistance in comparison to that given by all other sources of information and evidence which led to arrest and conviction.
No person, except as authorized by the Agency's Office of Enforcement and Compliance Monitoring to have this knowledge, shall be given access to the identity of, or information that would lead to the identity of, a claimant who has requested anonymity prior to disclosing information to the Agency.
Prior to the actual payment of an award, no employee of the United States Government, including any person purporting to act on behalf of the United States Environmental Protection Agency, is authorized by these regulations to make any promise, offer, or representation with respect to the Agency's grant of an award in exchange for information.
(a) Any individual seeking an award under this regulation is required to file a claim for such an award with the Deputy Assistant Administrator for Criminal Enforcement not later than 45 days after the conviction of the person(s) involved in the prosecution in which the information was provided.
(b) The claim submission must provide, at a minimum, a summary of the information provided, the date the information was provided, and the name and title of the person to whom the information was provided.
(c) All claim submissions must be submitted to the Office of Criminal Enforcement Counsel (LE-134X), United States Environmental Protection Agency, 1200 Pennsylvania Ave., NW,Washington, DC 20460. The claim envelope should also specify whether the information was submitted under a request for anonymity and whether such request is still in effect. All such externally identified claims shall be handled in accordance with the Agency procedures for maintaining informant confidentiality, as referenced in § 303.31 of this subpart.
42 U.S.C. 9607(a) and 9622(h)(2), Executive Order No. 12580, 52 FR 2923 (January 29, 1987).
This regulation establishes and governs procedures for the arbitration of EPA cost recovery claims arising under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9607(a), as amended by the Superfund Amendments and Reauthorization Act of 1986, Pub. L. 99-499, 100 Stat. 1613 (1986) (“CERCLA”), pursuant to the authority granted EPA by section 122(h)(2) of CERCLA, 42 U.S.C. 9622(h)(2), and Executive Order No. 12580, 52 FR 2923 (January 29, 1987).
The procedures established by this regulation govern the arbitration of EPA claims for recovery, under section 107(a) of CERCLA, 42 U.S.C. 9607(a), of response costs incurred at or in connection with a facility by the United States pursuant to section 104 of CERCLA, 42 U.S.C. 9604. The procedures are applicable when:
(a) The total past and projected response costs for the facility concerned do not exceed $500,000, excluding interest; and
(b) The Administrator and one or more PRPs have submitted a joint request for arbitration pursuant to § 304.21 of this part.
Terms not defined in this section have the meaning given by section 101 of CERCLA, 42 U.S.C. 9601, or the National Oil and Hazardous Substances Pollution Contingency Plan, 40 CFR part 300. All time deadlines in this part are specified in calendar days and shall be computed in the manner described in Rule 6(a) of the Federal Rules of Civil Procedure.
Except when otherwise specified, the following terms are defined for purposes of this part as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(a) In accordance with the procedures established by this part, the Arbitrator is authorized to arbitrate one or more issues arising in an EPA claim when:
(1) The total past and projected response costs for the facility concerned do not exceed $500,000, excluding interest; and
(2) The Administrator and one or more PRPs have submitted a joint request for arbitration pursuant to § 304.21 of this part.
(b)(1) If the total past and projected response costs for the facility concerned increase to a dollar amount in excess of $500,000, excluding interest, prior to the rendering of the final decision pursuant to § 304.33 of this part, the parties may mutually agree to continue the proceeding as non-binding arbitration pursuant to the procedures established by this part, except that §§ 304.33(e) and 304.40 of this part shall not apply.
(2) If all of the parties agree to continue the proceeding as non-binding arbitration, the proposed decision rendered by the Arbitrator pursuant to § 304.33 of this part shall not be binding upon the parties, unless all of the parties agree to adopt the proposed decision as an administrative settlement pursuant to section 122(h)(1) of CERCLA, 42 U.S.C. 9622(h)(1). Any administrative settlement agreed upon in this manner shall be subject to the prior written approval of the Attorney General (or his designee) pursuant to section 122(h)(1) of CERCLA and shall be subject to public comment pursuant to section 122(i) of CERCLA, 42 U.S.C. 9622(i).
(3) If the parties do not agree to continue the proceeding as non-binding arbitration, or if the administrative settlement agreed upon is not approved by the Attorney General (or his designee),
(c) The Arbitrator's authority, as defined by paragraphs (d) and (e) of this section, to determine issues arising in EPA's claim is limited only to the issues submitted for resolution by the parties in the joint request for arbitration pursuant to § 304.21 of this part. Any issues arising in EPA's claim that are not submitted for resolution shall be deemed to be not in dispute and shall not be raised in any action seeking enforcement of the decision for the purpose of overturning or otherwise challenging the final decision, except as provided in § 304.40(c) of this part.
(d)(1) If the issue of liability of any participating PRP has been submitted for resolution, the Arbitrator shall determine whether the participating PRP is liable pursuant to section 107(a) of CERCLA, 42 U.S.C. 9607(a), subject only to the defenses specifically enumerated in section 107(b) of CERCLA, 42 U.S.C. 9607(b).
(2) If the issue of the dollar amount of response costs recoverable by EPA has been submitted for resolution, the Arbitrator shall determine, pursuant to paragraph (e) of this section, the dollar amount of response costs recoverable by EPA pursuant to section 107(a) of CERCLA, 42 U.S.C. 9607(a), and shall award the total amount of such costs to EPA.
(3) Unless the Arbitrator finds that the actual or threatened harm at the facility is divisible, any participating PRP whom the Arbitrator determines to be liable shall be jointly and severally liable for the total amount of response costs awarded to EPA. If the Arbitrator finds that the actual or threatened harm is divisible, the Arbitrator shall allocate liability for payment of EPA's award among the participating PRPs based on the portion of the actual or threatened harm attributable to each participating PRP.
(4) Notwithstanding the indivisibility of the actual or threatened harm, and without waiving the general applicability of the joint and several liability standard, as an alternative to paragraph (d)(3) of this section, the parties may request the Arbitrator to allocate responsibility for payment of response costs awarded to EPA among the participating PRPs whom the Arbitrator determines to be liable. Any such request shall be made in the joint request for arbitration pursuant to § 304.21 of this part. If such a request is made, the provisions of paragraphs (d)(4)(i), (d)(4)(ii), and (d)(4)(iii) of this section shall apply.
(i) The joint request for arbitration may specify the factors to be applied by the arbitrator when allocating among the participating PRPs responsibility for payment of the response costs awarded to EPA. If the joint request does not specify such factors, the Arbitrator shall base the allocation on such factors as the arbitrator considers relevant, in his or her sole discretion, such as volume, toxicity, and mobility of the hazardous substances contributed to the facility by each participating PRP, ability to pay, and inequities and aggravating factors.
(ii) The joint request for arbitration may specify that the Arbitrator may allocate among the participating PRPs less than all response costs awarded to EPA. If this is not specified, the Arbitrator shall allocate among the participating PRPs 100% of the response costs awarded to EPA.
(iii) The burden of establishing the appropriate allocation of responsibility for payment of the response costs awarded to EPA shall rest entirely with the participating PRPs.
(5) The parties may request that the Arbitrator perform an allocation even if the issue of the liability of the participating PRPs is not submitted for resolution in the joint request for arbitration. Such a request for allocation shall be made in the joint request for arbitration pursuant to § 304.21 of this part. If such a request is made, the provisions of paragraphs (d)(4)(i), (d)(4)(ii), and (d)(4)(iii) of this section shall apply.
(e)(1) If any issue concerning the adequacy of EPA's response action has been submitted for resolution or arises during the Arbitrator's determination of the dollar amount of response costs
(2) If the Arbitrator upholds EPA's selection of the response action in full, the Arbitrator shall award EPA all response costs incurred and to be incurred in connection with the response action, unless any participating PRP can establish that all or part of such costs were:
(i) Not actually incurred or to be incurred; or
(ii) Not actually incurred or to be incurred in connection with the response action; or
(iii) Clearly excessive, taking into account the circumstances of the response action and relative to acceptable government procurement and contracting practices in light of the circumstances of the response action.
(3) If the Arbitrator upholds EPA's selection of the response action only in part, the Arbitrator shall award EPA only those response costs incurred and to be incurred in connection with the portions of the response action that were upheld, unless any participating PRP can establish that all or part of such response costs were:
(i) Not actually incurred or to be incurred; or
(ii) Not actually incurred or to be incurred in connection with the portions of the response action that were upheld; or
(iii) Clearly excessive, taking into account the circumstances of the response action and relative to acceptable government procurement and contracting practices in light of the circumstances of the response action.
(4) The standard of review to be applied by the Arbitrator under paragraphs (e)(1), (e)(2), and (e)(3) of this section is arbitrary and capricious or otherwise not in accordance with law.
(5) In reviewing any procedural errors alleged by any party, the Arbitrator may disallow response costs only if the errors were so serious and related to matters of such central relevance that the response action would have been significantly changed had such errors not been made.
(a) If EPA believes that a claim is an appropriate candidate for arbitration, EPA will notify all identified PRPs for the facility concerned and provide such PRPs with an opportunity to discuss referral of one or more issues arising in the claim for resolution pursuant to the procedures established by this part. Alternatively, one or more PRPs at a facility may propose to EPA use of arbitration, after receipt of a demand by EPA for payment of a claim, but prior to commencement of civil litigation of the claim. Where practicable, before an agreement to refer a claim for arbitration is made final under this alternative, either the PRPs or EPA shall notify the other PRPs at the facility of the potential use of arbitration.
(b)(1) The Administrator and one or more PRPs associated with a facility may submit to the Association a joint request for arbitration of one or more issues arising in an EPA claim concerning the facility. The joint request shall be signed by all of the parties and shall include:
(i) A brief description of the facility, the EPA response action taken at the facility, the EPA claim, and the parties;
(ii) A statement of the issues arising in the claim that are being submitted by the parties for resolution by arbitration;
(iii) A statement that the parties consent to resolution of the issues jointly submitted pursuant to the procedures established by this part by an Arbitrator appointed pursuant to § 304.22 of this part;
(iv) A statement that the parties agree to be bound by the final decision on all issues jointly submitted by the parties for resolution and to pay any award made in the final decision, subject to the right to challenge the final decision solely on the grounds and in the manner prescribed by § 304.40(c) of this part;
(v) A statement that the parties agree that the award made in the final
(vi) A statement that the parties agree that the final decision shall be binding only with respect to the response costs at issue in the claim submitted for arbitration;
(vii) A statement that the parties agree that the statute of limitations governing the EPA claim submitted shall be extended for a time period equal to the number of days from the date the joint request for arbitration is submitted to the Association to the date of resolution of any enforcement action relating to the final decision; and
(viii) A statement that each signatory to the joint request is authorized to enter into the arbitration and to bind legally the party represented by him or her to the terms of the joint request.
(2) The joint request shall also include the name, address and telephone number of each party, and, if a party is represented by an attorney, the attorney's name, address and telephone number. A party changing any of this information must promptly communicate the change in writing to the Association and all other parties. A party who fails to furnish such information or any changes thereto is deemed to have waived his or her right to notice and service under this part until such time as the party furnishes the missing information.
(c) Any party may move to modify the joint request for arbitration to include one or more additional issues arising in the referred claim. To be effective, any such modification must be signed by the Arbitrator and all other parties. The joint request for arbitration may also be modified to add one or more additional parties, if such intervention is permitted by § 304.24(a) of this part. To be effective, any such modification must be signed by the Arbitrator, the intervening party or parties, and all other parties.
(d) The statute of limitations governing the EPA claim submitted for arbitration shall be extended for a time period equal to the number of days from the date the joint request for arbitration is submitted to the Association to the date of resolution of any enforcement action relating to the final decision.
(e) Prior to the selection of the Association, the Administrator and one or more PRPs associated with a facility may agree to submit one or more issues arising in an EPA claim for resolution by arbitration. Any such agreement shall be contained in a joint request for arbitration which meets all requirements of paragraph (b) of this section. In any such arbitration, the arbitrator shall be selected pursuant to § 304.22(e) of this part, and payment of all costs associated with the arbitration shall be made pursuant to § 304.41(e) of this part. Arbitrations agreed upon pursuant to this paragraph shall be governed by the procedures established by this part, except for those procedures which pertain specifically to the duties of the Association. All duties of the Association shall be performed in a manner agreed upon by all of the parties.
(a) The Association shall establish and maintain a National Panel of Environmental Arbitrators.
(b) Within ten days of the filing of the joint request for arbitration, the Association shall identify and submit simultaneously to all parties an indentical list of ten persons chosen from the National Panel of Environmental Arbitrators, whom the Association believes will not be subject to disqualification because of circumstances likely to affect impartiality pursuant to § 304.23 of this part. Each party shall have ten days from the date of receipt of the list to identify any persons objected to, to rank the remaining persons in the order of preference, and to return the list to the Association. If a party does not return the list within the time specified, all persons on the list are deemed acceptable to that party. From among the persons whom the parties have indicated as acceptable, and, in accordance with the designated order of mutual preference, if any, the Association shall invite an Arbitrator to serve. If the parties fail to mutually agree upon any of the persons named, or if the invited Arbitrator is unable to serve, or if for any other reason the appointment cannot be made
(c) Within seven days of the appointment of the Arbitrator, the Association shall mail to each of the parties notice of the identity of the Arbitrator and the date of the appointment, together with a copy of these rules. The Arbitrator shall, within five days of his or her appointment, file a signed acceptance of the case with the Association. The Association shall, within seven days of receipt of the Arbitrator's acceptance, mail notice of such acceptance to the parties.
(d) If any appointed Arbitrator should resign, die, withdraw, be disqualified or otherwise be unable to perform the duties of the office, the Association may, on satisfactory proof, declare the office vacant. Vacancies shall be filled in accordance with the applicable provisions of this section, and the matter shall be resumed.
(e) If the Administrator and one or more PRPs associated with a facility enter into a joint request for arbitration prior to the selection of the Association (
(a) A person appointed as an Arbitrator under § 304.22 of this part shall, within five days of receipt of his or her notice of appointment, disclose to the Association any circumstances likely to affect impartiality, including any bias or any financial or personal interest in the result of the arbitration, or any past or present relationship with the parties or their counsel, or any past or present relationship with any PRP to which the claim may relate.
(b) Upon receipt of such information from an appointed Arbitrator or other source, the Association shall, within two days of receipt, communicate such information to the parties. Such communication may be made orally or in writing, but if made orally, shall be confirmed in writing.
(c) If any party wishes to request disqualification of an Arbitrator, such party shall notify the Association and the other parties of such request and the basis therefor within seven days of receipt of the information on which such request is based.
(d) The Association shall make a determination on any request for disqualification of an Arbitrator within seven days after the Association receives any such request, and shall notify the parties in writing of such determination. This determination shall be within the sole discretion of the Association, and its decision shall be final.
(a)(1) No later than thirty days prior to the pre-hearing conference (
(2) If the Arbitrator has been appointed, a motion to intervene shall be filed with the Arbitrator and a copy shall be served upon all parties. If the Arbitrator has not yet been appointed, a motion to intervene shall be submitted to the Association and a copy shall be served upon all parties.
(3) Any such motion to intervene may be granted only upon the written approval of the Arbitrator and all of the parties in the form of a modification to the joint request for arbitration pursuant to § 304.21(c) of this part. by
(b) Any party may move to withdraw from the arbitral proceeding within thirty days after receipt of the notice of appointment of the Arbitrator (
(a) No interested person shall make or knowingly cause to be made to the Arbitrator an
(b) The Arbitrator shall not make or knowingly cause to be made to any interested person an
(c) The Association may remove the Arbitrator in any proceeding in which it is demonstrated to the Association's satisfaction that the Arbitrator has engaged in prohibited
(d) Whenever an
(e) The prohibitions of this section apply upon appointment of the Arbitrator and terminate on the date of the final decision.
(a) Discovery shall be in accordance with this section and § 304.31 of this part.
(b) Within thirty days after receipt of the notice of appointment of the Arbitrator (
(1) A statement of facts, including a description of the facility, the EPA response action taken at the facility, the response costs incurred and to be incurred by the United States in connection with the response action taken at the facility, and the parties;
(2) A description of the evidence in support of the following four elements of liability of the participating PRP(s) whose liability pursuant to section 107(a) of CERCLA, 42 U.S.C. 9607(a), is
(i) The site at which EPA's response action was taken is a
(ii) There was a
(iii) The release or threat of release caused the United States to incur
(iv) The participating PRP is in one of the categories of liable parties in section 107(a) of CERCLA, 42 U.S.C. 9607(a);
(3) An index of any documents which formed the basis for the selection of the response action taken at the facility (all indexed documents shall be made available to any participating PRP);
(4) A summary, broken down by category, of all response costs incurred and to be incurred by the United States in connection with the response action taken by EPA at the facility (supporting documentation for the summary shall be made available to any participating PRP pursuant to the procedures described in Rule 1006 of the Federal Rules of Evidence);
(5) To the extent such information is available, the names and addresses of all identified PRPs for the facility, the volume and nature of the substances contributed to the facility by each identified PRP, and a ranking by volume of the substances contributed to the facility;
(6) A recommended location for the pre-hearing conference and the arbitral hearing; and
(7) Any other statement or documentation that EPA deems necessary to support its claim.
(c) Within thirty days after receipt of EPA's written statement, each participating PRP shall submit to the Arbitrator two copies of an answer and shall serve a copy of the answer upon all other parties. The answer shall in all cases include the information requested in paragraphs (c)(1), (c)(6), and (c)(7) of this section, shall include the information requested in paragraph (c)(2) of this section if the issue of the liability of the answering participating PRP has been submitted for resolution, shall include the information requested in paragraph (c)(3) of this section if any issue concerning the adequacy of EPA's response action has been submitted for resolution or may arise during the Arbitrator's determination of the dollar amount of response costs recoverable by EPA, shall include the information requested in paragraph (c)(4) of this section if the issue of the dollar amount of response costs recoverable by EPA has been submitted for resolution, and shall include the information requested in paragraph (c)(5) of this section if any issue concerning the allocation of responsibility for payment of EPA's award has been submitted for resolution:
(1) Any objections to the statement of facts in EPA's written statement, and, if so, a counterstatement of facts;
(2) Any objections to EPA's position on the liability of the answering participating PRP pursuant to section 107(a) of CERCLA, 42 U.S.C. 9607(a), a description of the evidence in support of the defenses to liability of the answering participating PRP which are specifically enumerated in section 107(b) of CERCLA, 42 U.S.C. 9607(b) (
(3) Any objections to the response action taken by EPA at the facility based upon any documents which formed the basis for the selection of the response action;
(4) Any objections to EPA's summary and supporting documentation for all response costs incurred and to be incurred by the United States in connection with the response action taken by EPA at the facility;
(5) Any documentation which the participating PRP deems relevant to the allocation of responsibility for payment of EPA's award.
(6) A recommended location for the pre-hearing conference and the arbitral hearing; and
(7) Any other statement or documentation that the participating PRP deems necessary to support its claim.
(d) EPA may file a response to any participating PRP's answer within twenty days of receipt of such answer. Two copies of any such response shall be served upon the Arbitrator, and a copy of any such response shall be served upon all parties.
(e) If EPA files a response, any participating PRP may file a reply thereto within ten days after receipt of such response. Two copies of any such reply shall be served upon the Arbitrator, and a copy of any such reply shall be served upon all parties.
(a) The Arbitrator and the parties shall exchange witness lists (with a brief summary of the testimony of each witness) and any exhibits or documents that the parties have not submitted in their pleadings pursuant to § 304.30 of this part, within 110 days after the appointment of the Arbitrator (
(b) The Arbitrator shall select the location, date, and time for the pre-hearing conference, giving due consideration to any recommendations by the parties.
(c) The pre-hearing conference shall be held within one hundred twenty days after the appointment of the Arbitrator (
(d) The Arbitrator shall mail to each party notice of the pre-hearing conference not later than twenty days in advance of such conference, unless the parties by mutual agreement waive such notice.
(e) Any party may be represented by counsel at the pre-hearing conference. A party who intends to be so represented shall notify the other parties and the Arbitrator of the name, address and telephone number of counsel at least three days prior to the date set for the pre-hearing conference. When an attorney has initiated the arbitration by signing the joint request for arbitration on behalf of a party, or when an attorney has filed a pleading on behalf of a party, such notice is deemed to have been given.
(f) The pre-hearing conference may proceed in the absence of any party who, after due notice, fails to appear.
(g)(1) At the pre-hearing conference, the Arbitrator and the parties shall exchange witness statements, a stipulation of uncontested facts, a statement of disputed issues, and any other documents, including written direct testimony, that will assist in prompt resolution of the dispute and avoid unnecessary proof.
(2) The Arbitrator and the parties shall consider the settlement of all or part of the claim. The Arbitrator may encourage further settlement discussions among the parties. Any settlement reached may be set forth in a proposed decision in accordance with § 304.33 of this part. If such a settlement is not set forth in a proposed decision, the settlement shall be treated as an administrative settlement pursuant to section 122(h)(1) of CERCLA, 42 U.S.C. 9622(h)(1), and shall be subject to public comment pursuant to section 122(i) of CERCLA, 42 U.S.C. 9622(i).
(a) The Arbitrator may, in his sole discretion, schedule a hearing with the parties on one or more of the disputed issues identified in the statement of disputed issues pursuant to § 304.31(g)(1) of this part.
(b) The Arbitrator shall select the location, date, and time for the arbitral hearing, giving due consideration to any recommendations by the parties.
(c) The hearing shall commence within forty-five days after the pre-hearing conference (
(d) The Arbitrator shall mail to each party notice of the hearing not later than twenty days in advance of the hearing, unless the parties by mutual agreement waive such notice. Such notice shall include a statement of the disputed issues to be addressed at the hearing. The Arbitrator need not mail
(e) Any party may be represented by counsel at the hearing. A party who intends to be so represented shall notify the other parties and the Arbitrator of the name, address and telephone number of counsel at least three days prior to the date set for the hearing. When an attorney has initiated the arbitration by signing the joint request on behalf of a party, or when an attorney has filed a pleading on behalf of a party, or when notice has been given pursuant to § 304.31(e) of this part, such notice is deemed to have been given.
(f) The Arbitrator shall make the necessary arrangements for the making of a true and accurate record of the arbitral hearing.
(g) The Arbitrator shall make the necessary arrangements for the services of an interpreter upon the request of one or more of the parties.
(h) The Arbitrator may take adjournments upon the request of any party or upon the Arbitrator's own initiative and shall take such adjournment when all of the parties agree thereto.
(i) The Arbitrator shall administer oaths to all witnesses before they testify at the arbitral hearing.
(j)(1) A hearing shall be opened by the recording of the location, date, and time of the hearing, the presence of the Arbitrator and the parties, and counsel if any, and by the Arbitrator's acknowledgment for the record of all pleadings and all other documents that have been filed by the parties.
(2) The hearing shall be conducted in accordance with the Arbitrator's jurisdiction as defined by § 304.20 of this part.
(3) The Arbitrator may, at any time, require oral statements clarifying the issues to be addressed at the hearing.
(4) The Arbitrator may require the parties to present witnesses for questioning by the Arbitrator and for direct and cross-examination by the parties on any of the disputed issues, except for any disputed issues concerning the selection or adequacy of the response action, which shall be governed by paragraph (j)(6) of this section.
(5) The Arbitrator shall define the scope of oral testimony. A party may present oral direct testimony only upon a showing of good cause why such testimony could not have been submitted in written form, or upon consent of all of the parties.
(6) Notwithstanding §§ 304.20(e)(1) and 304.20(e)(4) of this part, the Arbitrator may permit any party to supplement the documents which formed the basis for the selection of the response action (with additional documents, affidavits, or oral testimony), if any party demonstrates that supplementation is appropriate based upon applicable principles of administrative law.
(k)(1) Except as provided in paragraph (j)(6) of this section, exhibits and other documentary evidence not included in a party's pleadings, not exchanged prior to the pre-hearing conference pursuant to § 304.31(a) of this part, or not exchanged at the pre-hearing conference pursuant to § 304.31(g)(1) of this part, may be introduced at the hearing only upon a showing of good cause by the moving party or upon consent of all of the parties.
(2) Except as provided in paragraph (j)(6) of this section, witnesses not identified in a party's witness list may be presented at the hearing only upon a showing of good cause by the moving party or upon consent of all of the parties.
(3) The Arbitrator shall be the judge of the relevance and materiality of the evidence offered during the proceeding and of the applicability of legal privileges. Conformity to legal rules of evidence shall not be required.
(4) The Arbitrator may make such orders as may be necessary for
(l) The hearing may proceed in the absence of any party who, after due notice, fails to appear or fails to obtain an adjournment. If a party, after due notice, fails to appear or fails to obtain an adjournment, such party will be deemed to have waived the right to be present at the hearing.
(m) After all disputed issues have been heard by the Arbitrator, the Arbitrator may permit the parties to make
(n) The hearing shall be completed within two weeks, unless the Arbitrator extends the hearing for good cause.
(o) The Arbitrator may permit the parties to submit proposed findings of fact, rulings, or orders within ten days after receipt of the hearing transcript or such longer time upon a finding of good cause.
(p) The parties may provide, by written agreement, for the waiver of the hearing.
(a) The Arbitrator shall render a proposed decision within forty-five days after the hearing is closed, or within forty-five days after the pre-hearing conference if no hearing is held, unless the parties have settled the dispute prior to the rendering of the proposed decision.
(b)(1) The proposed decision shall be in writing and shall be signed by the Arbitrator. It shall be limited in accordance with the Arbitrator's jurisdiction as defined by § 304.20 of this part, and shall, if such issues have been jointly submitted by the parties for resolution, contain the Arbitrator's determination of:
(i) Which participating PRPs, if any, are liable pursuant to section 107(a) of CERCLA, 42 U.S.C. 9607(a);
(ii) The dollar amount of response costs, if any, to be awarded to EPA; and
(iii) The allocation of responsibility for payment of EPA's award, if any, among the participating PRPs.
(2) The proposed decision shall also assess arbitration fees and expenses (
(c) If the parties settle their dispute during the course of the proceeding, the Arbitrator may, upon the parties' request, set forth in the terms of the agreed settlement in a proposed decision. Except as provided in § 304.20(b) of this part, a proposed decision which embodies an agreed settlement shall be subject to all applicable provisions of this part, including, but not limited to, paragraph (e) of this section and § 304.40 of this part.
(d) The parties shall accept as legal delivery of the proposed decision the placing in the United States mail of a true copy of the proposed decision, sent by certified mail, return receipt requested, addressed to each party's last known address or each party's attorney's last known address, or by personal service.
(e)(1) Pursuant to section 122(i) of CERCLA, 42 U.S.C. 9622(i), notice of the proposed decision shall be published promptly by EPA in the
(i) A summary of any comments filed;
(ii) Responses to any comments filed;
(iii) A discussion of whether any comments filed disclose to EPA facts or considerations which indicate the proposed decision is inappropriate, improper or inadequate; and
(iv) EPA's determination as to whether modification of the proposed decision or withdrawal from the arbitral proceeding is necessary based upon such comments.
(2) If EPA's written notice does not state that modification or withdrawal
(f) Payment of EPA's award, if any, and any fees or expenses due pursuant to the final decision, shall be made within thirty days after the date of the final decision.
(g) The Arbitrator shall, upon written request of any party, furnish to such party certified facsimiles of all papers in the Arbitrator's possession that may be required in judicial proceedings relating to the arbitration pursuant to § 304.40 of this part.
(a) Pursuant to section 122(h)(4) of CERCLA, 42 U.S.C. 9622(h)(4), any participating PRP who has resolved his or her liability for an EPA claim through a final decision reached pursuant to the procedures established by this part shall not be liable for claims for contributions regarding matters addressed by the final decision.
(b) The final decision shall be binding and conclusive upon the parties as to issues that were jointly submitted by the parties for resolution and addressed in the decision.
(c)(1) If any award made in the final decision is not paid within the time required by § 304.33(f) of this part, the final decision may be enforced as a settlement under section 122(h) of CERCLA, 42 U.S.C. 9622(h), by the Attorney General on behalf of EPA in any appropriate Federal district court pursuant to section 122(h)(3) of CERCLA, 42 U.S.C. 9622(h)(3). Pursuant to section 122(h)(3) of CERCLA, the terms of the final decision shall not be subject to review in any such action.
(2) In any such enforcement action initiated by the United States, the final decision may be challenged by any party if:
(i) It was achieved through fraud, misconduct, or partiality on the part of the Arbitrator;
(ii) It was achieved through fraud or misconduct by one of the parties affecting the result;
(iii) The Arbitrator exceeded his or her jurisdiction under § 304.20 of this part or failed to decide the claim within the bounds of his or her authority under this part; or
(iv) It violates public policy.
(3) Except as necessary to show such fraud, misconduct, partiality, excess of jurisdiction or authority, or violation of public policy, in any such enforcement action, a party may not raise, for the purpose of overturning or otherwise challenging the final decision, issues arising in the claim that were not submitted for resolution by arbitration.
(d) Except as provided in paragraph (c) of this section, and except as necessary for a participating PRP to defend against an action seeking contribution for matters addressed by the final decision, no final decision shall be admissible as evidence of any issue of fact or law in any proceeding brought under any provision of CERCLA or any other provision of law.
(e) Neither the initiation of an arbitral proceeding nor the rendering of a final decision on an EPA claim shall preclude or otherwise affect the ability of the United States, including EPA, to:
(1) Seek injunctive relief against any participating PRP for further response action at the facility concerned pursuant to CERCLA or any other applicable statute, regulation or legal theory; or
(2) Take further response action at the facility concerned pursuant to
(3) Seek reimbursement from any participating PRP for any costs not the subject of the arbitral proceeding pursuant to CERCLA or any other applicable statute, regulation or legal theory; or
(4) Seek any relief for any violation of criminal law from any participating PRP; or
(5) Seek damages for injury to, destruction of, or loss of natural resources from any participating PRP; or
(6) Seek any relief, civil or criminal, from any person not a party to the arbitral proceeding under CERCLA or any other applicable statute, regulation or legal theory.
(a) The Association shall prescribe an Administrative Fee Schedule and a Refund Schedule, which shall be subject to the approval of EPA. The schedule in effect at the time of filing or the time of refund shall be applicable.
(b) Expenses of witnesses shall be borne by the party producing such witnesses. The expense of the stenographic record and all transcripts thereof shall be prorated equally among all parties ordering copies, unless otherwise agreed by the parties, or unless the Arbitrator assesses such expenses or any part thereof against any specified party in the decision. The expense of an interpreter shall be borne by the party requesting the interpreter.
(c) The Association shall establish the per diem fee for the Arbitrator, subject to the approval of EPA, prior to the commencement of any activities by the Arbitrator. Arrangements for compensation of the Arbitrator shall be made by the Association.
(d) The Association shall make appropriate arrangements to pay the Arbitrator's fee and the administrative fee, and shall render an accounting to the parties in accordance with the Arbitrator's award, within thirty days after the date of the final decision.
(e) In any arbitration conducted prior to the selection of the Association (
(a) Any party who proceeds with the arbitration knowing that any provision or requirement of this part has not been complied with, and who fails to object thereto either orally or in writing in a timely manner, shall be deemed to have waived the right to object.
(b) The original of any joint request for arbitration, modification to any joint request for arbitration, pleading, letter, or other document filed in the proceeding (except for exhibits and other documentary evidence) shall be signed by the filing party or by his or her attorney.
(c) All papers associated with the proceeding that are served by a party to an opposing party shall be served by personal service, or by United States first class mail, or by United States certified mail, return receipt requested, addressed to the party's attorney, or if the party is not represented by an attorney or the attorney cannot be located, to the last known address of the party. All papers associated with the proceeding that are served by the Arbitrator or by the Association shall be served by personal service or by United States certified mail, return receipt requested, addressed to the party's attorney, or if the party is not represented by an attorney or the attorney cannot be located, to the last known address of the party.
(d) If any provision of this part, or the application of any provision of this part to any person or circumstance, is held invalid, the application of such provision to other persons or circumstances and the remainder of this part shall not be affected thereby.
42 U.S.C. 9601
(a)(1) This part governs all administrative proceedings for the total or partial denial of response claims asserted against the Hazardous Substance Superfund (the Fund) pursuant to sections 111(a)(2) and 122(b)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), 42 U.S.C. 9601
(2) Sections 111(a)(2) and 122(b)(1) of CERCLA authorize EPA, among other things, to use the Fund to reimburse certain persons who file claims for eligible response costs incurred in carrying out the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300. In the event that the Claims Official declines to pay all or part of a claim, a claimant may request an administrative hearing pursuant to § 305.4(a) within 30 days after receiving notice of the Claims Official's decision. The procedures governing such a proceeding are set forth in this part.
(b) Procedural questions arising at any stage of the proceeding which are not addressed in this part shall be resolved at the discretion of the Claims Official, the Review Officer, or the Presiding Officer, as appropriate.
As used in this part, words in the singular also include the plural and words in the masculine gender also include the feminine, as the case may require.
(a) The following definitions apply to this part:
(b) Terms defined in CERCLA or in 40 CFR part 300 and not defined in this part are used consistent with the
(a)
(b)
(1) Conduct administrative hearings under this part;
(2) Rule upon motions, requests, and offers of proof, dispose of procedural requests, and issue all necessary orders;
(3) Administer oaths and affirmations;
(4) Examine witnesses and receive documentary or other evidence;
(5) Order a party, or an officer or agent thereof, for good cause, upon motion, or
(6) Admit or exclude evidence;
(7) Hear and decide questions of law and fact;
(8) Require parties to attend conferences for the settlement or simplification of the issues, or the expedition of the proceedings;
(9) Extend the time limit for a final order in the hearing for a period not to exceed 60 days;
(10) Render findings of fact, conclusions of law, and a final order;
(11) Assess costs of the proceeding pursuant to § 305.36(b);
(12) Do all other acts and take all measures necessary for the maintenance of order and for the efficient and impartial adjudication of issues arising in proceedings governed by this part; and
(13) Resolve all disputes based on the evidence and applicable law; see § 305.31 concerning evidence.
(c) The Presiding Officer shall notify the parties that the Request for a Hearing has been assigned to him, and that he has received the case file from the Chief Administrative Law Judge.
(d)
(2) If the Review Officer or the Presiding Officer is disqualified or withdraws from the proceeding, a qualified individual who has none of the infirmities listed in paragraph (d)(1) of this section shall be assigned to replace him. The Administrator shall appoint a new Review Officer. The Chief Administrative Law Judge shall assign a new Presiding Officer from among the available Administrative Law Judges.
(3) The Chief Administrative Law Judge shall have the power to rule on motions for disqualification as described in paragraph (d)(1) of this section and may, at any stage in the hearing, reassign the case to an Administrative Law Judge other than the one originally assigned in the event of the unavailability of the Administrative Law Judge or where reassignment will result in efficiency in the scheduling of hearings and will not prejudice the parties.
(a)
(2) A certificate of service shall accompany each document filed or served. Except as otherwise provided, a party filing documents with the Hearing Clerk, after filing of the answer, shall serve copies thereof upon all other parties and the Presiding Officer. The Presiding Officer shall maintain a duplicate file during the course of the proceeding.
(3) When the Presiding Officer corresponds directly with a party, the original of the correspondence shall be sent to the Hearing Clerk, a copy shall be maintained by the Presiding Officer in the duplicate file, and a copy shall be sent to all parties. A party who corresponds directly with the Presiding Officer shall, in addition to serving all other parties, send a copy of all such correspondence to the Hearing Clerk. A certificate of service shall accompany each document served under this paragraph.
(b)
(2)
(ii) Service upon the Claims Official, the Review Officer, or the Hearing Clerk shall be made by delivering two copies of the document to the appropriate official in the manner prescribed in paragraph (b)(2)(i) of this section.
(iii) Service upon a domestic or foreign corporation or upon a partnership or other unincorporated association that is subject to an action under a common name shall be made in the manner prescribed in paragraph (b)(2)(i) of this section, directed to an officer, partner, a managing or general agent, or to any other person authorized by appointment or by Federal or State law to receive service of process.
(iv) Service upon a State or local unit of government, or a State or local officer, agency, department, corporation or other instrumentality shall be made by serving a copy of the document in the manner prescribed by the law of the State for the service of process on any such persons, or:
(A) If upon a State or local unit of government, or a State or local department, agency, corporation or other instrumentality, by personal service or certified mail, as prescribed by paragraph (b)(1) of this section, directed to the Chief Executive Officer thereof;
(B) If upon a State or local officer, by personal service or certified mail, as prescribed by paragraph (b)(1) of this section, to such officer.
(v) Service upon an officer of agency of the United States shall be made by delivering a copy of the document to the officer or agency, or in any manner prescribed for service by applicable regulations. If the agency is a corporation, the document shall be served as prescribed in paragraph (b)(2)(iii) of this section.
(c)
(2) The first page of every pleading, letter, or other document shall contain a caption identifying the Requestor, the docket number assigned by the Review Officer, and the official to whom the document is directed. All pleadings greater than ten pages in length, and all legal briefs, shall contain a table of contents and a table of citations with page references.
(3) The original of any pleading, letter or other document (other than exhibits) shall be signed by the party filing or by his counsel or other representative. The signature constitutes a representation by the signer that he has read the pleading, letter, or other document, that to the best of his knowledge, information and belief, the statements made therein are true, and that it is not interposed for delay.
(4) The initial document filed by any party shall contain his name, address and telephone number. Any changes in this information shall be communicated promptly to the appropriate official, and all parties to the proceeding. A party who fails to furnish such information and any changes thereto shall be deemed to have waived his right to notice and service under this part.
(5) The Claims Official, Review Officer, Presiding Officer, or Hearing Clerk may refuse to file any document which does not comply with paragraph (c) of this section. Written notice of such refusal, stating the reasons therefore, shall be promptly given to the party submitting the document. Such party may amend and resubmit any document refused for filing, if such amendment and resubmission is timely. If, for good cause shown, amendment and resubmission is not timely, a party may request an extension of the time in which to submit a document to the appropriate official.
(d)
(2) Any pleading or document containing CBI shall be filed in a double envelope. The outside envelope should not mention that CBI is contained. The inside envelope shall specify the envelope contains CBI.
(3) For each original or copy of each pleading or document filed or served which contains CBI, the person shall submit two versions.
(i) One version must be complete. In that version, the person shall mark the specific information claimed as CBI pursuant to this section.
(ii) The CBI must be deleted in the second version, and all information claimed as CBI must be indicated in such version, as well as the nature of the information claimed as CBI, and the fact that another version containing the CBI has been filed pursuant to this section.
(4) The Hearing Clerk shall not accept for filing any CBI pleading or document which does not comply with the requirements of paragraphs (d)(2) and (3) of this section.
(5) All claims of CBI, and all information entitled to treatment as CBI, shall be governed by the provisions of 40 CFR part 2, subpart B, for CERCLA, as well as any other EPA regulatory provisions affecting the confidentiality of the information.
(a)
(b)
(c)
At no time after the Request for a Hearing is referred to the Presiding Officer shall the Presiding Officer discuss
(a)
(b)
Any party may appear in person or by counsel or other representative. A partner may appear on behalf of a partnership and an officer may appear on behalf of a corporation. Persons who appear as counsel or other representative must conform to the standards of conduct and ethics required of practitioners before the courts of the United States.
(a)
(1) There exist common parties or common questions of fact or law;
(2) Consolidation would expedite and simplify consideration of the issues; and
(3) Consolidation would not adversely affect the rights of parties engaged in otherwise separate proceedings.
(b)
(a) Within 30 days after receiving notice that the Claims Official has declined to pay all or part of a claim, the claimant may file a Request for a Hearing with the Review Officer. The Request for a Hearing shall contain:
(1) A statement of the authority for the Request for a Hearing;
(2) A concise statement of the reasons that the Requestor disputes the Claims Official's denial of all or part of the claim;
(3) A request for an administrative hearing concerning the Claims Official's total or partial denial of his claim pursuant to this part; and
(4) A statement of amount that the Requestor demands to be awarded from the Fund.
(b) The Requestor must file with the Request for a Hearing two copies of:
(1) The Preauthorization Decision Document for the response work that is the subject of the claim;
(2) The claim filed with EPA pursuant to CERCLA section 111(a)(2) or 122(b)(1); and
(3) The written notice from the Claims Official denying all or part of the claim.
(a)
(b)
(a)
(b)
(1) The circumstances or arguments which are alleged to constitute the grounds of defense; and
(2) The facts which the Claims Official intends to place at issue.
(c)
(d)
(a)
(b)
(c)
(a)
(b)
(c)
(d)
(a)
(b)
(a)
(1) The settlement of the case;
(2) The simplification of issues and stipulation of facts not in dispute;
(3) The necessity or desirability of amendments to the pleadings;
(4) The exchange of exhibits, documents, prepared testimony, and admissions or stipulations of fact which will avoid unnecessary proof;
(5) The limitation of the number of expert or other witnesses;
(6) Setting a time and place for the hearing; and
(7) Any other matters which may expedite the disposition of the proceeding.
(b)
(c)
(d)
(e)
(f)
(2) The parties may conduct any mutually agreed upon discovery without participation or determination of the Presiding Officer except that such voluntary discovery may be subject to such time limitations as the Presiding Officer deems appropriate.
(3) Except as provided by paragraphs (b) and (f)(2) of this section, further discovery, under this section, shall be permitted only pursuant to order of the Presiding Officer. Any party to the proceeding desiring an order of discovery shall make a motion therefore. Such motion shall set forth:
(i) The circumstances warranting the discovery;
(ii) The nature of the information expected to be discovered; and
(iii) The method of discovery sought, including, where relevant, the proposed time and place where the discovery will be conducted.
(4) The Presiding Officer shall issue an order for discovery only upon a showing of good cause and upon a determination:
(i) That such discovery will not in any way unreasonably delay the proceeding;
(ii) That the information to be obtained is not otherwise obtainable; and
(iii) That such information has significant probative value.
(5) The Presiding Officer shall order depositions upon oral questions only upon a finding that:
(i) The information sought cannot be obtained by alternative methods of discovery; or
(ii) There is a substantial reason to believe that relevant and probative evidence may otherwise not be preserved for presentation by a witness at the hearing.
(6) When the information sought to be obtained is within the control of one of the parties, failure to comply with an order issued pursuant to this paragraph may lead to:
(i) The inference that the information to be discovered would be adverse to the party from whom the information was sought; or
(ii) The issuance of a default order under § 305.24(a).
(g)
(a)
(b)
(2) If an accelerated order or an order to dismiss is rendered on less than all issues in the proceeding, the Presiding Officer shall determine what material facts exist without substantial controversy and what material facts remain controverted in good faith. He shall thereupon issue an interlocutory order specifying the facts which appear substantially uncontroverted, and the issues upon which the hearing will proceed.
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(b)
The Requestor has the burden of going forward with his case and of proving that the amount demanded in the Request for a Hearing is justified. Accordingly, the Requestor bears the burdens of presentation and persuasion. Following the establishment of a prima facie case, the Claims Official shall have the burden of presenting and of going forward with any defense to the allegations set forth in the Request for a Hearing. Each matter of controversy shall be determined by the Presiding Officer upon a preponderance of the evidence.
The hearing shall be transcribed verbatim. Promptly following the taking of the last evidence, the reporter shall transmit to the Hearing Clerk the original and as many copies of the transcript of testimony as are called for in the reporter's contract with the Agency, and also shall transmit to the Presiding Officer a copy of the transcript. A certificate of service shall accompany each copy of the transcript. The Hearing Clerk shall notify all the parties of the availability of the transcript and shall furnish the Requestor with a copy of the transcript upon payment of the cost of reproduction, unless a Requestor can show that the cost is unduly burdensome. Any person not a party to the proceeding may receive a copy of the transcript upon payment of the reproduction fee, except for those parts of the transcript ordered to be kept confidential by the Presiding Officer. Any party may file a motion to correct the transcript in accordance with the provision of § 305.23.
Within 20 days after the parties are notified of the availability of the transcript, any party may submit for the consideration of the Presiding Officer proposed findings of fact, conclusions of law, and a proposed order, together with briefs in support thereof. The Presiding Officer shall set a time by which reply briefs may be submitted. The Presiding Officer may by order extend the time or change the schedule of such submissions or allow further submissions as may be appropriate. All submissions shall be in writing, shall be served upon all parties, and shall contain references to the record for all proposed findings of fact and appropriate citations for authorities relied upon.
(a)
(b)
42 U.S.C. 9601
This part prescribes the appropriate forms and procedures for presenting claims for necessary response costs as authorized by section 112(b)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA) (herein referred to as CERCLA, or the Act) (42 U.S.C. 9601
(a) The following may be submitted only through the procedures established by this part: claims for responses to a release or substantial threat of release of a hazardous substance into the environment; claims for responses to a release or substantial threat of release of any pollutants or contaminants into the environment, which may present an imminent and
(b) This part does not affect the terms and conditions contained in Preauthorization Decision Documents (PDDs) issued prior to the effective date of this part. However, a potential claimant may elect to comply with the provisions of this part, rather than the terms and conditions of a PDD issued prior to the effective date of this part, if he so chooses. Written notice of this election must be provided to EPA by the potential claimant prior to such provision taking effect, but not later than the time of the submittal of any claim to EPA. EPA will provide a written acknowledgement of the potential claimant's election and may revise the PDD as appropriate.
As used in this part, words in the singular also include the plural and vice versa, and words in the masculine gender also include the feminine, as the case may require.
In computing any period of time described or allowed in this part, except as otherwise provided, the day of the event from which the designated period begins to run shall not be included. Saturdays, Sundays, and Federal legal holidays shall be included. When a stated time expires on a Saturday, Sunday, or Federal legal holiday, the stated time period shall be extended to include the next business day.
Terms that are not defined in this section or restated herein, shall have the meaning set forth in section 101 of CERCLA or the 1990 NCP or any final revision thereto. As used in this part, the following words and terms shall have the meanings set forth below:
(1) Building, structure, installation, equipment, pipe or pipeline (including any pipe into sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft; or
(2) Any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.
(1) Any substance designated pursuant to section 311(b)(2)(A) of the Federal Water Pollution Control Act (33 U.S.C. 1251
(2) Any element, compound, mixture, solution, or substance designated pursuant to section 102 of CERCLA;
(3) Any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act (42 U.S.C. 6801
(4) Any toxic pollutant listed under section 307(a) of the Federal Water Pollution Control Act;
(5) Any hazardous air pollutant listed under section 112 of the Clean Air Act (42 U.S.C. 7401
(6) Any imminently hazardous chemical substance or mixture with respect to which the Administrator of EPA (Administrator) has taken action pursuant to section 7 of the Toxic Substances Control Act (15 U.S.C. 2601
(1) Required (based upon the site-specific circumstances);
(2) Reasonable (nature and amount do not exceed that estimated or which would be incurred by a prudent person);
(3) Allocable (incurred specifically for the site at issue); and
(4) Otherwise allowable (consistent with the limitations and exclusions under the appropriate Federal cost principles). See OMB Circular A-122 (non-profit organizations); OMB Circular A-87 (States and political subdivisions); and 48 CFR part 31, subparts 31.1 and 31.2 (profit-making organizations).
(1) EPA's receipt of the application for preauthorization;
(2) EPA's review and analysis of the application; and
(3) EPA's issuance of the Preauthorization Decision Document, which sets forth the terms and conditions for reimbursement.
(a) If any person knowingly gives a material statement or representation in the application for preauthorization or in the claim that is false, misleading, misrepresented, or misstated, and EPA relies upon such a statement or representation in making its decision, the preauthorization or the award by EPA may be withdrawn following written notice to the claimant.
(b) Any person who knowingly gives, or causes to be given, any false information as part of an application for preauthorization or of a claim (including any person who meets the conditions of paragraph (a) of this section) may, upon conviction, be fined or imprisoned in accordance with CERCLA section 112(b)(1) and other laws.
(a) Subject to the provisions of this subpart, claims for the costs of response actions may be asserted against the Fund by any person other than the United States Government, States, and political subdivisions thereof, except to the extent the claimant is otherwise compensated for the loss. States and political subdivisions may assert such claims if they are potentially responsible parties subject to an agreement reached pursuant to section 122(b)(1) of CERCLA.
(b) Claims presented by an individual must be signed by that individual. If, because of death, disability, or other reasons satisfactory to EPA, the foregoing requirement cannot be fulfilled, the claim may be filed by a duly authorized agent, executor, administrator, or other legal representative. A claim presented by an entity or an authorized agent, executor, administrator, or other legal representative must be presented in the name of the claimant. The claim must be signed by the authorized agent, executor, administrator, or other legal representative (including the title or legal capacity of the person signing) and be accompanied by evidence of the authority to present a claim on behalf of the claimant as authorized agent, executor, administrator, or other legal representative.
(c) A claim for response costs as to which any release from liability was executed between the claimant and a potentially responsible party may be presented against the Fund to the extent that the claimant obtained EPA's approval prior to executing such release and provided that the other requirements of this part are met.
(d) A foreign claimant may present a response claim to the Fund, to the same extent that a United States claimant may assert a claim, if:
(1) The requirements of § 307.21 and § 307.22 are met; and
(2) The release of a hazardous substance occurred in the navigable waters of the United States, including the territorial sea, or in or on the territorial sea or adjacent shoreline of a foreign country of which the claimant is a resident; and
(3) The claimant is not otherwise compensated for the loss; and
(4)The hazardous substance was released from a facility or from a vessel located adjacent to or within the navigable waters or was discharged in connection with activities conducted under the Outer Continental Shelf Lands Act, as amended (43 U.S.C. 1331
(5) Recovery is authorized by a treaty or an executive agreement between the United States and the foreign country involved, or if the Secretary of State, in consultation with the Attorney General and other appropriate officials, certifies that such country provides a comparable remedy for United States claimants.
(a) Claims may be asserted against the Fund for necessary costs incurred for response actions due to a release or substantial threat of release of a hazardous substance into the environment; a release or substantial threat of release of pollutants or contaminants into the environment that may present an imminent or substantial danger to public health or welfare; or actions taken by a potentially responsible party subject to an agreement reached pursuant to section 122(b)(1) of CERCLA. Claims must be filed in accordance with § 307.22. Claims may be asserted for the costs of removal actions, remedial planning activities, and remedial actions.
(b) Costs will be considered to be eligible under this section if:
(1) The response action is preauthorized by EPA pursuant to § 307.22;
(2) The costs are incurred for activities within the scope of EPA's preauthorization;
(3) The response action is conducted in a manner consistent with the NCP; and
(4) The costs incurred are necessary costs pursuant to § 307.11 of this part.
(c)Money in the Fund may be used for paying any claim under this section for expenses incurred for the payment of contractor claims either through settlement of such claims or an award by a third party to the extent EPA determines that:
(1) The contractor claim arose from work within the scope of the contract at issue and the contract was for preauthorized response activities;
(2) The contractor claim is meritorious;
(3) The contractor claim was not caused by the mismanagement of the claimant;
(4) The contractor claim was not caused by the claimant's vicarious liability for the improper actions of others;
(5) The claimed amount is reasonable and necessary;
(6) The claim for such costs is filed by the claimant within 5 years of completion of the preauthorized response action; and
(7) Payment of such a claim will not result in total payments from the Fund in excess of the maximum amount for which claims were preauthorized.
(d) An award by a third party on a contractor claim under paragraph (c) of this section should include:
(1) Findings of fact;
(2) Conclusions of law;
(3) Allocation of responsibility for each issue;
(4) Basis for the amount of award; and
(5) The rationale for the decision.
(e) Money in the Fund may not be used for paying any claim under this section for expenses incurred for procurement transactions that were not conducted in a manner that provided to the maximum extent practicable, open and free competition; unduly restricted or eliminated competition; and did not provide where applicable for the award of contracts to the lowest responsive, responsible bidder where the selection was made principally on the basis of price.
(f) Money in the Fund may not be used for paying any claim under this section for expenses incurred by a person operating pursuant to a procurement contract or assistance agreement with the United States.
(g) Money in the Fund may not be used for paying any claim under this section for expenses incurred for the payment of persons who are on the “List of Parties Excluded From Federal Procurement or Non-Procurement” at the time the contract is awarded, unless EPA approval is obtained in advance.
(h) Unless EPA waives this requirement prior to the award of a construction contract, money in the Fund may not be used for paying any claim under this section for expenses incurred under such a construction contract that does not contain a “differing site conditions” clause equivalent to the following:
(1) The contractor shall promptly, and before such conditions are disturbed, notify the claimant in writing of:
(i) Subsurface or latent physical conditions at the site differing materially from those listed in this contract, or
(ii) Unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this contract.
(2) Upon notification by the construction contractor, the claimant shall promptly investigate the conditions. If the claimant finds that conditions materially differ and will cause an increase or decrease in the contractor's cost or the time required to perform any part of the work under its contract, whether or not changed as a result of such conditions, the claimant shall make an equitable adjustment and modify the contract in writing.
(3) No claim of the contractor under the differing site conditions clause shall be allowed unless the contractor has given the notice required in paragraph (h)(1) of this section. However, the claimant may extend the time prescribed in paragraph (h)(1) of this section.
(4) No claim by the contractor for an equitable adjustment shall be allowed if asserted after final payment under this contract.
(i) Where money in the Fund has been used to pay for any response costs under this section, no other claim may be paid out of the Fund for the same costs.
(a) No person may submit a claim to the Fund for a response action unless that person notifies the Administrator of EPA or his designee prior to taking such response action and receives preauthorization by EPA. In order to obtain preauthorization, any person intending to submit a claim to the Fund must fulfill the following requirements before commencing a response action:
(1) Notify the lead agency through the National Response Center (as described in 40 CFR 300.125), if there is acute threat of fire, explosion, or direct human contact with hazardous substances, pollutants, or contaminants or
(2) Submit an application for preauthorization (EPA Form 2075-3, found at appendix A of this part) to the Administrator or his designee; and
(3) Obtain the approval of the Administrator or his designee before initiating the response action.
(b) All applications for preauthorization must include, where available;
(1) A description of the location and nature of the release or threatened release of a hazardous substance or pollutant or contaminant (e.g., type and location of vessel or facility, population at risk, routes of exposure);
(2) A description of the nature and quantity of the hazardous substance or pollutant or contaminant which has been or may be released, including whether the substance is on the list of hazardous substances set forth pursuant to section 102 of CERCLA;
(3) The identity of any potentially responsible parties known to the applicant (including the applicant), and any contact with such parties, including, but not limited to, any correspondence, agreements, or litigation with such parties;
(4) Evidence of the applicant's eligibility to file a claim pursuant to § 307.20;
(5) An explanation of why the proposed response action is necessary, and how the proposed action is consistent with 40 CFR 300.700(d)(4)(ii);
(6) A description of the applicant's capability (including financial and technical capability) to implement the proposed response action;
(7) Proposed schedule of activities;
(8) Projected costs of response activities, with the basis for those projections (projections shall be based on actual anticipated costs without a contingency for unanticipated conditions);
(9) Proposed schedule for the submission of claims;
(10) The proposed contracting procedures;
(11) Proposed procedures for project management, EPA oversight, and reporting of progress of the project; and
(12) The assurances of timely initiation and completion.
(c) Applications for preauthorization to undertake a removal action shall, in addition to the requirements in paragraph (b) of this section, include:
(1) A summary or copy of the preliminary assessment; and
(2) A description of the proposed removal action for which the claim will be made, which environmental requirements are applicable or relevant and appropriate, and how the removal will comply with such requirements.
(d) Applications for preauthorization to undertake a remedial investigation and feasibility study shall, in addition to the requirements in paragraph (b) of this section, include:
(1) The scope of the proposed study;
(2) A proposed site sampling plan and quality assurance procedures;
(3) The plan for the development of alternatives;
(4) Approaches to consideration of alternatives to land disposal;
(5) Plans for initial screening of alternatives;
(6) Proposed procedures for the detailed analysis of alternatives; and
(7) Proposed considerations in selection of the remedy.
(e) Applications for preauthorization to undertake a remedial alternative other than that selected by EPA, or where EPA has not selected a remedy, shall, in addition to the requirements in paragraph (b) of this section, include a discussion of how the proposed remedy:
(1) Differs from the one selected by EPA, if applicable;
(2) Achieves protection of public health and welfare and the environment and complies with legally applicable or otherwise relevant and appropriate Federal, State, and local requirements pursuant to 40 CFR 300.400(g) or waivers to those requirements in 40 CFR 300.430(f)(1)(ii)(C). The application shall also include a discussion of pertinent Federal and State guidance, advisories, and criteria;
(3) Will be cost-effective as set out in section 121(a) of CERCLA and 40 CFR 300.430(f)(1)(ii)(D);
(4) Mitigates and minimizes future risks;
(5) Improves the reliability of the remedy;
(6) Utilizes new or innovative technology, if appropriate;
(7) Employs treatment that reduces the volume, toxicity or mobility of the hazardous substances;
(8) Impacts projected costs; and
(9) Takes into account appendix D of 40 CFR part 300.
(f) Applications for preauthorization to undertake a remedial action, including those described in paragraph (e) of this section, shall in addition to the requirements in paragraph (b) of this section, include:
(1) A description of the proposed remedial action for which the claim will be made;
(2) A proposed site sampling plan and quality assurance procedures;
(3) Documentation of reasonable effort to obtain the cooperation of the State or Indian Tribe;
(4) A bond or other financial assurance to cover the costs of necessary long-term operation and maintenance of the response action or written assurance from the State to provide such long-term operation and maintenance;
(5) Proposed procedures using sealed bidding to select the construction contractor, or an explanation of why the applicant intends to use any other method; and
(6) Documentation showing that the response will be carried out in accordance with applicable or relevant and appropriate environmental requirements. Documentation should include the potential impacts on any environmentally sensitive areas.
(g) Claims of business confidentiality may be asserted for information submitted to EPA under this subpart. Information claimed confidential will be disclosed by EPA only to the extent permitted by CERCLA, this subpart, and part 2, subpart B, of this chapter.
(1) Any claim of business confidentiality must accompany the information when it is submitted to EPA. Claims must be asserted as prescribed on the forms. Items claimed confidential on the forms and attachments to the forms must be clearly marked by circling or bracketing them.
(2) The applicant or response claimant must provide EPA with two copies of its submittal if any information is claimed confidential.
(i) One copy of the submittal must be complete, with items claimed confidential clearly marked in accordance with paragraph (g)(1) of this section.
(ii) The second copy must be complete except that all information claimed as confidential in the first copy must be deleted. EPA may make this second copy available to the public.
(iii) If the applicant does not provide a redacted copy, the application for preauthorization is incomplete. If the claimant does not provide a redacted copy, the claim against the Fund will not be perfected by EPA. EPA will not process such submittals until it receives the redacted copy.
(3) If a submitter of a response claim or an application for preauthorization does not assert a claim of business confidentiality for information at the time the information is submitted to EPA, the Agency may make the information public without further notice to the submitter.
(h) In addition to the foregoing, an application for preauthorization filed by a potentially responsible party for partial reimbursement of response costs shall include:
(1) A copy of the settlement agreement, or the most recent draft of any pending agreement, reached between such parties and the Federal Government; and
(2) If the application is to undertake a remedial investigation and feasibility study, an affirmation that the applicant will not directly or indirectly benefit from the preauthorization as a response action contractor, or as a person hired or retained by such a contractor with respect to the site at issue and an agreement to reimburse the Fund for any costs incurred under, or in connection with, the oversight contract or arrangement for the remedial investigation and feasibility study.
(i) If it is subsequently determined that the preauthorized response actions require modification or if it appears that project costs will exceed approved costs, a revised application for preauthorization must be approved by
(j) Unless otherwise specified and agreed to by EPA, the terms, provisions, or requirements of a court judgment, Consent Decree, administrative order (whether unilateral or on consent), or any other consensual agreement with EPA requiring a response action do not constitute preauthorization to present a claim to the Fund.
(a) EPA shall review each preauthorization application and will notify the applicant of the decision to grant or deny preauthorization. Decisions to grant preauthorization will be memorialized in a PDD.
(b) Each application for preauthorization must include information sufficient for EPA to determine whether the response will be consistent with 40 CFR 300.700(d). EPA will evaluate applications based on the following non-exclusive list of criteria, as appropriate:
(1) Whether the release is within the scope of CERCLA;
(2) The seriousness of the problem or importance of the response activity when compared with competing demands on the Fund;
(3) Whether there is sufficient time to process the request for preauthorization (e.g., if a removal action is proposed);
(4) Whether the party liable for the release or threat of release of the hazardous substance is unknown, or if known, has been notified of the application for preauthorization and is unwilling or incapable of performing the response in a reasonable period of time;
(5) Whether the State, a political subdivision, or an Indian Tribe is willing to undertake the response action through a contract or a cooperative agreement;
(6) The cost and effectiveness of the proposed response actions when compared with other alternatives;
(7) Whether proposed response can be carried out in accordance with the NCP and other environmental requirements;
(8) The applicant's eligibility to file a claim; his capabilities, experience, and technical expertise; and his knowledge and familiarity with the NCP and relevant guidance;
(9) Whether the party is proposing to conduct a cleanup through an administrative order or a Consent Decree with the Government regarding the site for which the request is made (if the applicant is a potentially responsible party);
(10) Whether the applicant, if he is a potentially responsible party seeking to undertake a remedial investigation and feasibility study, has affirmed that he will not directly or indirectly benefit from the preauthorization as a response action contractor, or as a person hired or retained by such a contract with respect to the site at issue, and agrees to reimburse the Fund for any cost incurred under, or in connection with, the oversight contract or arrangement for the remedial investigation and feasibility study;
(11) Whether the proposed costs are eligible and the applicant has proposed appropriate procurement, contract management, project management, financial management and documentation procedures;
(12) Whether the applicant has met the necessary assurances, financial responsibilities, and other requirements;
(13) Provisions for long-term operation and maintenance of the site, if appropriate;
(14) Whether the applicant has consulted with the State or Indian Tribe on the proposed response action;
(15) The applicant's proposed procedures for oversight and the reporting of project issues and progress;
(16) Cooperation of the applicant at any earlier stage of response activity; and
(17) Whether the proposed schedule for filing a claim(s) is based upon the completion of the project, an operable unit, or a discrete phase of the response work.
(c) The Administrator may grant preauthorization for all or part of a proposed response action, but not less than a stage of an operable unit or of a response action.
(1) The Administrator may set a limit on the amount that may be
(2) The Administrator may condition the preauthorization on such inspection, monitoring, reporting, safety, and long-term operation and maintenance requirements as he deems necessary. The costs of such requirements may not necessarily be reimbursed from the Fund.
(3) The Administrator may condition the preauthorization on such time period for starting and completing the response action as he may deem necessary.
(4) The Administrator may condition the preauthorization on such financial or other assurance from the claimant or other entity as he may deem necessary to ensure completion of work at the site.
(5) The Administrator will not subject potentially responsible parties who may wish to undertake a remedial investigation and feasibility study to a lesser standard of liability nor will he give such parties preferential treatment in EPA's review of applications for preauthorization.
(d) If EPA denies a preauthorization because of an insufficient balance in the Fund or the low priority assigned to the response action when weighed against other applications or uses of the Fund, the applicant may resubmit the application in another fiscal year. If preauthorization is denied because of the inability of the applicant to demonstrate his experience and capabilities, the applicant may resubmit the application form only after correcting the deficiencies, or by proposing an alternative approach.
(e) If EPA grants preauthorization, the applicant may begin the approved response action subject to the terms and conditions contained in the PDD. The applicant, as a condition of preauthorization, shall assure that the lead agency shall have such site access as may be necessary for oversight and monitoring.
(f) If the applicant is unable to initiate or complete the preauthorized response action, the applicant shall immediately notify EPA in writing.
(g) EPA will not grant preauthorization for any response actions where:
(1) The proposed action is not a response action authorized under CERCLA;
(2) There is a significant threat to the public health or the environment caused by acute threat of fire, explosion, direct human contact with a hazardous substance, or other similar hazardous situations requiring immediate action, and there is insufficient time to process an application for preauthorization;
(3) The proposed response is a remedial action and the site is not on the NPL; or
(4) The action is to be performed by a State, political subdivision, Indian Tribe through an assistance agreement with the United States, or a person operating pursuant to a contract with the United States.
(h) EPA will deny preauthorization to a person whom the Agency believes is a liable party under section 107 of CERCLA unless negotiations are underway aimed at reaching a judicial or administrative settlement. Such parties may be preauthorized under this paragraph to submit claims to the Fund for response costs up to the maximum amount specified in the PDD.
(a) A claimant must present all claims to any person who is known to the claimant and who may be liable under section 107 of CERCLA at least 60 days before filing a claim against the Fund. The presentation to the potentially responsible party must be a written request for payment, delivered either by certified mail (return receipt requested) or in such a manner as will establish the date of receipt. At a minimum this request must contain:
(1) The name of the claimant (commercial entity or individual);
(2) The name, title, and address of any authorized representative;
(3) The location of the release and cleanup;
(4) The date of the release, if known;
(5) The owner of the property, if other than the claimant;
(6) A description of the response action taken; and
(7) The amount of the request (in dollars);
(8) If applicable, notice of intent to file a subsequent application for preauthorization or claim against the Fund for additional operable units or for a stage of a response action.
(b) Where the potentially responsible party is unknown, the claimant must make a good-faith effort to identify the potentially responsible party prior to submitting a claim. If the potentially responsible party is identified, the claimant must then comply with the procedures of § 307.30(a). Where a potentially responsible party cannot be identified, the claimant may submit a claim to the Fund pursuant to § 307.31. Claims submitted under this paragraph must be accompanied by documentation of efforts to identify potentially responsible parties.
(c) If the claimant and the potentially responsible party agree to a settlement involving a release from liability, the claimant may submit a claim against the Fund for any costs that are not recovered provided the claimant complies with the provisions of § 307.20(c), which require EPA's prior approval of such releases from liability.
(d) If the claim is denied by the potentially responsible party, or has not been satisfied after 60 days of presentation to such party, the claimant may submit a claim to the Fund in accordance with § 307.31.
(e) If the first claim was denied by the potentially responsible party or not responded to, and EPA agrees that there is no reason to believe that subsequent claims would be honored by such potentially responsible party, the denial of the first claim, or lack of response, shall be considered denial of every subsequent claim.
(a) A response claim must be submitted on EPA Form 2075-4 and must include:
(1) Documentation showing that the claimed response activities were preauthorized by EPA;
(2) Documentation showing that the response activity was accomplished in a manner consistent with the PDD, noting any deviation from preauthorized activities;
(3) Documentation that a search to identify potentially responsible parties was conducted in accordance with § 307.30 and of any contacts with such parties; and
(4) Substantiation that all claimed costs are necessary costs.
(b) Claimants (or their authorized representatives) may amend their claims at any time before final action by EPA. Amendment of claims after final action by EPA will be allowed only at EPA's discretion. Each amendment must be submitted in writing and must be signed by the claimant or authorized representative. The time limitations of § 307.32(i) refer to the date by which an amendment is filed.
(c) Claimants may not pursue both an action in court against potentially responsible parties and a claim against the Fund at the same time for the same response costs. EPA will return claims presented under this subpart when the Agency determines that a claimant has initiated an action for recovery of the same response costs, in court, against a party potentially liable under section 107 of CERCLA.
(a) Upon receipt of a response claim, EPA will verify that it complies with all filing requirements. Where the claim is incomplete or has significant defects, EPA will return the claim to the claimant with written notification of its deficiencies.
(b) A claim returned to the claimant for failure to comply with the filing requirements may be resubmitted to EPA.
(c) For purposes of this part, a response claim is deemed perfected when EPA determines that the claim complies fully with the specified filing requirements; i.e., the claim is technically complete. When the claim is perfected, a notice will be provided to the claimant of EPA's receipt and acceptance of the claim for evaluation.
(d) EPA may adjust claims and in making a determination whether costs are allowable, EPA will be guided by the Federal cost principles (non-profit
(e) In evaluating claims, EPA will determine whether the claimant has settled and satisfactorily completed in accordance with sound business judgment and good administrative practice all contractual and administrative matters arising out of agreements to perform preauthorized response actions. This includes the issuance of invitations for bids or requests for proposals, selection of contractors, approval of subcontracts, settlement of protests, claims disputes, and other related procurement matters. EPA will examine how the claimant assured (e.g., by the use of a subcontract administration system) that work was performed in accordance with the terms, conditions, and specifications of such agreements.
(f) Awards will be made:
(1) Only for necessary costs of completing the response action or stage of an operable unit or of a response action;
(2) Only to the extent that the response actions were preauthorized by EPA pursuant to § 307.23;
(3) Only to the extent that the cleanup was performed effectively, as provided in 40 CFR 300.120(e)(3) and 300.400(h); and
(4) Only to the extent that the cleanup was performed in compliance with the terms and conditions of the PDD.
(g) No award will be made on a claim where the claimant has purported to release a potentially responsible party from liability to the United States for the same costs unless EPA has approved the release in advance.
(h) Where a response action is determined to have been ineffective due to acts or omissions of the claimant, his employees or agents, or any third party having a contractual relationship with the claimant, payment of the claim will be adjusted accordingly. EPA may require the claimant to submit any additional information needed to determine whether the actions taken were reasonable and necessary.
(i) For claims submitted in connection with a settlement reached under section 122(b)(1) of CERCLA only, interest will be paid on amounts due if EPA fails to pay the amount within 60 days of a perfected claim.
(1) Interest shall accrue on the amounts due the claimant where EPA fails to pay the claim for the preauthorized response action within 60 days of EPA's receipt of a perfected claim.
(2) Where the claim is technically complete but EPA requires additional information in order to evaluate the amount claimed, the period as stated in paragraph (i)(1) of this section or the accrual of interest is suspended from the date the Agency requests the information from the claimant until the date the requested information is received.
(3) Where a claim is denied in whole or in part by EPA, and the claimant requests an administrative hearing in accordance with paragraph (o) of this section, interest on the disputed amount begins to accrue 50 days after an award by the Administrative Law Judge, unless an appeal is filed. If either party files an appeal with a Federal district court, interest will not accrue until 20 days after the final judicial decision.
(4) The rate of interest paid on a claim is the rate of interest on investments of the Fund established by Subchapter A of Chapter 98 of the Internal Revenue Code of 1954.
(j) For claims submitted in connection with a settlement reached under section 122(b) of CERCLA, a preauthorized potentially responsible party will be entitled to full reimbursement only where the response action is conducted in complete satisfaction of the requirements set forth in the consent order or decree.
(k) Future site-specific actions required by preauthorized potentially responsible parties, and any future obligations on the Fund, shall be governed by § 307.42.
(l) Any withdrawal of preauthorization will be preceded by written notice from EPA. The application for preauthorization will be deemed invalid and no award will be made from the Fund where the claimant is determined by EPA to be liable under section 107 of CERCLA for the costs for which the claim is made, and the application for preauthorization
(1) The owner and operator of a vessel or a facility;
(2) Any person, who at the time of disposal of any hazardous substance, owned or operated any facility at which such hazardous substances were disposed of;
(3) Any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substance; or
(4) Any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance.
(m) If EPA determines that it cannot complete its evaluation of a claim because of insufficient information, it will request the necessary information from the claimant. If EPA determines that it cannot complete its evaluation of a claim because the records, documents, and other evidence were not maintained in accordance with generally accepted accounting principles and practices consistently applied, or were for any reason inadequate to demonstrate that claimed costs are necessary costs, EPA will adjust the claim accordingly. Further consideration of such amounts will depend on the adequacy of subsequent documentation. Any additional information requested by EPA must be submitted within 30 days, unless a different period of time is specified by EPA. The failure of the claimant to provide in a timely manner the requested information without reasonable cause may be cause for denial of the claim.
(n) Once the claim is perfected, EPA will proceed to:
(1) Make an award on the claim; or
(2) Decline to make an award.
(o) If the claimant is dissatisfied either with EPA's denial of a claim or with the amount of an award, the claimant may request that EPA arrange an administrative hearing in accordance with section 112(b) of CERCLA. The request for an administrative hearing must occur within 30 days of being notified of EPA's decision.
(p) Notice of an award under paragraph (f) of this section will be given by First Class Mail within five (5) days of the date of the decision. Payment of approved claims will be made according to § 307.40.
A claimant receiving an award from the Fund is required to maintain all cost documentation and any other records relating to the claim, and to provide EPA with access to such records. These records must be maintained until cost recovery is initiated by EPA. If, after ten (10) years from the date of award of the final claim, EPA has not initiated a cost recovery action, the claimant need no longer retain the records. The claimant shall, however, notify EPA of the location of the records, and allow EPA the opportunity to take possession of the records before they are destroyed. The claimant shall cause to be inserted in all agreements between itself and contractors performing work at the site a clause providing for the same requirement to maintain records and to provide access to records as that required of the claimant.
(a) Payment of claims will be made, as applicable, within:
(1) 50 days of EPA's decision to make an award, if the claimant does not request an administrative hearing;
(2) 50 days of an award by an administrative tribunal if no appeal of such award is taken; or
(3) 20 days of the final judicial decision of any appeal taken.
(b) Payment of a claim shall not be seen as EPA's final acceptance of the
(a) The United States acquires by subrogation all rights of the claimant to recover the amount of the claim paid by the Fund from the person or persons liable under section 107 of CERCLA for the release giving rise to the response action.
(b) Claimants shall assist in any cost recovery action that may be initiated by the United States. The claimant and the claimant's contractors shall furnish the personnel, services, documents, and materials needed to assist EPA in the collection of evidence to document work performed and costs expended by the claimant or the claimant's contractors at the particular site in order to aid in cost recovery efforts. The claimant and the claimant's contractors shall also provide all requested assistance in the interpretation of documents detailing work and costs that may be needed as evidence, and shall testify on behalf of the United States in any judicial or administrative cost recovery proceeding regarding the response costs claimed. All of the claimant's contracts for implementing the PDD shall expressly require their contractors to provide this cost recovery assistance.
(a) In the case of the failure of a completed remedial action taken by a potentially responsible party pursuant to a remedial action preauthorized in connection with a settlement under section 122(b)(1) of CERCLA, the Fund shall be available for the costs of any new cleanup required, but shall not be obligated to a proportion exceeding that proportion contributed by the Fund for the original remedial action.
(b) The Fund is not obligated by preauthorization of a response action to reimburse the claimant for subsequent remedial actions if those subsequent remedial actions are necessary as a result of the failure of the claimant, his employees or agents, or any third party having a contractual relationship with the claimant to properly perform authorized activities or otherwise comply with the terms and conditions of the PDD, and the Consent Decree or order regarding the site cleanup entered into by EPA and the claimant.
Sections 111(a)(2) and 122(b)(1) of CERCLA authorize the Fund to reimburse certain parties for necessary costs of performing a response action. As is described in more detail at 58 FR 5460, Jan. 21, 1993, 40 CFR part 307, there are two major limitations placed on the payment of claims for response actions. First, only private parties, certain potentially responsible parties (including States and political subdivisions), and certain foreign entities are eligible to file such claims. Second, all response actions under sections 111(a)(2) and 122(b)(1) must receive prior approval, or “preauthorization,” from EPA.
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA) (42 U.S.C. 9601
First, only private parties, parties to section 122(b)(1) agreements (including States and political subdivisions thereof) and foreign entities are eligible for payment through the response claims mechanism. Federal, State, and local government units, and Indian Tribes can receive funding for response activities through other authorities of section 111(a) or section 123 of CERCLA.
Second, eligible claimants can only be reimbursed for costs that are incurred in carrying out the National Contingency Plan (NCP), 40 CFR part 300. In order to be in conformity with the NCP, all claims must receive prior approval, or “preauthorization,” from EPA. This means that before response work is initiated, the party must:
(1) Notify EPA of its intent to file a claim;
(2) Demonstrate that the release merits priority consideration;
(3) Propose activities to remedy the release that can be carried out consistent with the NCP; and
(4) Demonstrate the capabilities necessary to carry out such activities in a safe and effective manner.
The limitations placed on the payment of claims for response actions and the procedures for filing such claims are described in more detail at 58 FR 5460, Jan. 21, 1993, 40 CFR part 307. Additional information can be obtained by contacting Phyllis Anderson, Office of Emergency and Remedial Response (5203 G), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460, (703) 603-8971, or the RCRA/CERCLA Hotline, (800) 424-9346 (or (703) 920-9810 in the Washington, DC metropolitan area).
42 U.S.C. 9611(c)(11), 9623.
This part sets up procedures for EPA to reimburse local governments for certain emergency response costs. Local governments may receive up to $25,000 to help lighten financial burdens related to emergency response to hazardous substance releases. This reimbursement does NOT replace funding that local governments normally provide for emergency response.
This part is authorized under section 123 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) (Pub. L. 96-510, 42 U.S.C. 9601-9675), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA) (Pub. L. 99-499, 42 U.S.C. 9601).
For purposes of this part except when otherwise specified:
(a)
(b)
(c)
(d)
(e)
(f)
(i) Any substance designated pursuant to section 311(b)(2)(A) of the Federal Water Pollution Control Act (Pub. L. 101-380, 33 U.S.C. 1251
(ii) Any element, compound, mixture, solution, or substance designated pursuant to section 102 of CERCLA;
(iii) Any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act (Pub. L. 89-272, 42 U.S.C. 3259
(iv) Any toxic pollutant listed under section 307(a) of the Federal Water Pollution Control Act (Pub. L. 101-380, 33 U.S.C. 1251
(v) Any hazardous air pollutant listed under section 112 of the Clean Air Act (42 U.S.C. 7401-7642); and
(vi) Any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 7 of the Toxic Substances Control Act (Pub. L. 94-469, 15 U.S.C. 2601-2629).
(2) The term does not include petroleum, including crude oil or any fraction thereof that is not otherwise specifically listed or designated as a hazardous substance under paragraphs (f)(1)(i) through (f)(1)(vi) of this section, and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).
(g)
(h)
(i)
(j)
(k)
(l)
(m)
The following abbreviations appear in this part:
If you are the governing body of a county, parish, municipality, city, town, township, federally-recognized Indian tribe or general purpose unit of local government, you are eligible for reimbursement. This does not include special purpose districts.
States are NOT eligible for reimbursement under this part, and states may NOT request reimbursement on behalf of their local governments.
No. EPA will accept only one reimbursement request for a single response. A single response includes all of the temporary emergency measures that ALL local governments or agencies conduct in response to a single hazardous substance release. If more than one local government or agency responds, you must decide among yourselves who will request reimbursement on behalf of all.
Possibly not. EPA can only reimburse you for temporary emergency measures you take in response to releases of hazardous substances, pollutants, or contaminants. The statute allows reimbursement for only certain costs, and by statute, the total amount of the reimbursement may not exceed $25,000 for a single response.
No. The maximum amount EPA can reimburse is $25,000 for a single response, which includes all activities by ALL local responders. If the costs incurred by multiple local governments or agencies exceed $25,000, you must decide among yourselves how the total reimbursement will be divided.
(a) Temporary emergency measures are actions taken to control or eliminate immediate threats to human health and the environment.
(b) Examples of temporary emergency measures are:
(1) Site security;
(2) Controlling the source of contamination;
(3) Containing the release to prevent spreading;
(4) Neutralizing or treating pollutants released; and
(5) Controlling contaminated runoff.
(a) Reimbursement under this part does NOT supplant funds you normally provide for emergency response. Allowable costs are only those necessary for you to respond effectively to a specific incident that is beyond what you might normally respond to.
(b) Examples of allowable costs are:
(1) Disposable materials and supplies you acquired and used to respond to the specific incident;
(2) Payment of unbudgeted wages for employees responding to the specific incident (for example, overtime pay for response personnel);
(3) Rental or leasing of equipment you used to respond to the specific incident (for example, protective equipment or clothing, scientific and technical equipment) (Note: rental costs are only allowable for the duration of your response; once you complete the response to the specific incident, further rental costs are NOT allowable);
(4) Replacement costs for equipment you own that is contaminated or damaged beyond reuse or repair, if you can demonstrate that the equipment is a total loss and that the loss occurred during the response (for example, self-contained breathing apparatus irretrievably contaminated during the response);
(5) Decontamination of equipment contaminated during the response;
(6) Special technical services specifically required for the response (for example, costs associated with the time and efforts of technical experts/specialists that are not on your staff);
(7) Other special services specifically required for the response (for example, utilities);
(8) Laboratory costs of analyzing samples that you took during the response;
(9) Evacuation costs associated with the services, supplies, and equipment that you procured for a specific evacuation; and
(10) Containerization or packaging cost and transportation and disposal of hazardous wastes.
(c) To be allowable, costs must:
(1) NOT be higher than what a careful person would spend for similar products or services in your area; and
(2) Be consistent with CERCLA and the federal cost principles outlined in OMB Circular A-87, “Cost Principles for State and Local Governments.” (Copies of the circular are available from the Office of Administration, Publications Office, New Executive Office Building, 725 17th Street, NW., Room 2200, Washington, DC 20503.)
(d) EPA will make final determinations on whether your costs are reasonable.
(a) Costs that are NOT allowable are expenditures you incur in providing what are traditionally local services and responsibilities. Examples include:
(1) Routine firefighting;
(2) Preparing contingency plans;
(3) Training; and
(4) Response drills and exercises.
(b) Costs that are NOT allowable also include items such as supplies, equipment, and services that you routinely purchase to maintain your ability to respond effectively to hazardous releases when they occur. Examples of other costs that are NOT allowable are:
(1) Purchase or routine maintenance of durable equipment expected to last one year or more, except when contaminated or damaged as described in § 310.11(b)(4) and (b)(5);
(2) Materials and supplies you did NOT purchase specifically for the response;
(3) Rental costs for equipment that you own or that another unit of local government owns;
(4) Employee fringe benefits;
(5) Administrative costs for filing reimbursement applications;
(6) Employee out-of-pocket expenses normally provided for in your operating budget (for example, meals or fuel);
(7) Legal expenses you may incur due to response activities, including efforts to recover costs from PRPs; and
(8) Medical expenses you incur due to response activities.
No. You should notify EPA, the National Response Center, or use another
Yes. Before applying for reimbursement from EPA, you must try to recover your costs from all known potentially responsible parties (PRPs). After you ask them for payment, you should give PRPs 60 days either to pay you, express their intent to pay you, or indicate willingness to negotiate. You must also try to get reimbursed by other sources (for example, your insurance company or your state). If you are not successful, you must certify on your reimbursement application that you made a good-faith, reasonable effort to recover your costs from other sources before applying to EPA. If you recover any portion of the costs from these sources after you receive reimbursement from us, you must return the recovered amount to EPA.
(a) You must apply for reimbursement on EPA Form 9310-1, shown in Appendix III to this part.
(b) You must submit your request within one year of the date you complete the response for which you request reimbursement. If you submit your application late, you must include an explanation for the delay. We will consider late applications on a case-by-case basis.
(c) Your application must be signed by the highest ranking official of your local government (for example, mayor or county executive), or you must include a letter of delegation authorizing a delegate to act on his or her behalf.
(d) Mail your completed application and supporting data to the LGR Project Officer, (5401A), Office of Emergency Management, Office of Solid Waste and Emergency Response, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Cost documentation must be adequate for an audit. At a minimum, you must:
(a) Include a description of the temporary emergency measures for which you request reimbursement;
(b) Specify the local agency that incurred the cost, (such as, the Town Fire Department, the County Health Department, or the City Department of Public Works);
(c) Include invoices, sales receipts, rental or leasing agreements, or other proof of costs you incurred; and
(d) Certify that all costs are accurate and that you incurred them specifically for the response for which you are requesting reimbursement.
(a) You must certify that reimbursement under this regulation does not supplant local funds that you normally provide for emergency response. This means that the reimbursement you request is for costs you would not normally incur; rather, they are for significant, unanticipated costs related to a specific incident beyond what you normally respond to.
(b) You must also certify that your response actions are not in conflict with CERCLA, the National Contingency Plan (NCP), and the local emergency response plan prepared by your Local Emergency Planning Committee, if there is one. If you need help with this requirement, contact the LGR Help line (800-431-9209) or your EPA regional office.
(c) You, as a local government, should be included in the local emergency response plan completed by your LEPC, as section 303(a) of EPCRA requires. This does not apply if your State Emergency Response Commission (SERC) has not established an LEPC responsible for the emergency planning district(s) that encompasses your geographic boundaries.
(a) When we receive your application, we will make sure it meets all requirements of this section. If your request is
(b) If your application meets all requirements, we will consider whether the costs claimed are allowable and reasonable. We will then send you written notification of our decision to award or deny reimbursement in full or in part.
We may deny your reimbursement request in full or in part if:
(a) Your records, documents, or other evidence are not maintained according to generally accepted accounting principles and practices consistently applied;
(b) The costs you claim are NOT reasonable or allowable, that is, they are higher than what a careful person would spend for similar products or services in your area; or
(c) You do not supply additional information within one year from when we request it; and
(d) Reimbursement would be inconsistent with CERCLA section 123, or the regulations in this part.
If we deny your request because you failed to meet a requirement in this regulation, you may request, in writing, that EPA grant an exception. You may also file a request for an exception with your initial application. In your request for an exception, you must state the requirement you cannot comply with and the reasons why EPA should grant an exception. We will grant exceptions only if you establish good cause for the exception and if granting the exception would be consistent with section 123 of CERCLA.
(a) The EPA reimbursement official's decision is final EPA action unless you file a request for review by registered or certified mail within 60 calendar days of the date you receive our decision. Send your request for review to the address given in § 310.15(d).
(b) You must file your request for review with the disputes decision official identified in the final written decision.
(c) Your request for review must include:
(1) A statement of the amount you dispute;
(2) A description of the issues involved;
(3) A statement of your objection to the final decision; and
(4) Any additional information relevant to your objection to EPA's decision.
(d) After filing for review:
(1) You may request an informal conference with the EPA disputes decision official;
(2) You may be represented by counsel and may submit documentary evidence and briefs to be included in a written record; and
(3) You will receive a written decision by the disputes decision official within 45 days after we receive your final submission of information unless the official extends this period for good cause.
(a) If you receive reimbursement under the regulations in this part, for three years you must keep all cost documentation and any other records related to your application. You must also provide EPA access to those records if we need them.
(b) After three years from the date of your reimbursement, if we have NOT begun a cost recovery action against a potentially responsible party, you may dispose of the records. You must notify EPA of your intent to dispose of the records 60 days before you do so, and allow us to take possession of these records beforehand.
(a) If necessary, EPA will rank approved reimbursement requests according to the financial burden the response costs impose on the local governments. We will estimate your financial burden by calculating the ratio of your allowable response costs to your annual per capita income adjusted for population. We will make adjustments for population so that a large city with a low per capita income will not necessarily receive a higher rank than a small town with a slightly higher per capita income. We will also consider other relevant financial information you may supply.
(b) We will use the per capita income and population statistics published by the U.S. Department of Commerce, Bureau of the Census, in Current Population Reports, Local Population Estimates, Series P-26, “1988 Population and 1987 Per Capita Income Estimates for Counties and Incorporated Places,” Vols. 88-S-SC, 88-ENC-SC, 88-NE-SC, 88-W-SC, 88-WNC-SC, March 1990. The Director of the Federal Register has approved this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. Copies are available from the Bureau of the Census, Office of Public Affairs, Department of Commerce, Constitution Avenue, NE., Washington, DC 20230 (1-202-763-4040). You may review a copy at the U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460 or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
(c) Larger ratios receive a higher rank. We will reimburse requests with the highest ranks first. Once we rank your request, we will either:
(1) Reimburse the request; or
(2) Hold the request for reconsideration once additional funding is available.
(d) The EPA reimbursement official will give you a written decision on whether the request will be reimbursed or held for future reconsideration.
(a) You must not knowingly or recklessly make any statement or provide any information in your reimbursement application that is false, misleading, misrepresented, or misstated. If you do provide incorrect or false information, and EPA relies on that information in making a reimbursement decision, we may deny your application and withdraw or recover the full amount of your award. In such a case, we would give you written notice of our intentions.
(b) If you, as a reimbursement applicant or someone providing information to the applicant, knowingly give any false statement or claim as part of any application for reimbursement under section 123 of CERCLA, you may be subject to criminal, civil, or administrative liability under the False Statement Act (Pub. L. 97-398, 18 U.S.C. 1001) the False Claims Act (Pub. L. 99-562, 31 U.S.C. 3729), and the Program Fraud and Civil Remedies Act (Pub. L. 99-509, 31 U.S.C. 3801).
(1) Can I be reimbursed for hazmat team salaries?
Generally, no; only unbudgeted overtime and/or extra time can be considered for reimbursement. (§ 310.11(b)(2))
(2) Will I be reimbursed for the cost of a destroyed fire truck?
Up to $25,000 of the cost of a lost fire truck can be considered an allowable cost and therefore, reimbursable. However, if the local government has insurance covering such losses, then we would not reimburse you for a destroyed fire truck. (§§ 310.11(b)(4) and 310.14)
(3) If I have a release in an elementary school, can the school district apply for reimbursement?
No, for purposes of the regulation in this part, a school district is considered a special purpose district of local government and therefore not eligible for reimbursement. The county or city where the incident happened may apply for reimbursement on behalf of the school district. (§§ 310.03(e) and 310.05)
(4) Why are incidents that involve a release of petroleum not eligible?
Because this program is authorized under CERCLA, and petroleum is excluded under CERCLA, we can't reimburse you for response to releases involving only petroleum. If, however, some hazardous substances are also involved, your incident may be reimbursed. (§ 310.03(f))
(5) Can I be reimbursed for laying water lines to a community whose drinking water is affected by a release?
No, laying water lines doesn't fall within the definition of temporary emergency measures. Providing bottled water on a temporary emergency basis is reimbursable. (§ 310.10(a))
(6) What if EPA gets too many applications in one year?
In the beginning of the program, there was a statutory limitation on the amount of the Superfund that could be used for reimbursements. That limitation was approximately $1,000,000. The limitation has expired, and EPA has only reimbursed slightly over $1,000,000 in ten years. There has not been a year where we received too many applications.
(7) If I incur significant costs trying to recover from the PRP, can I be reimbursed by EPA for those costs?
No, legal expenses are not allowable costs. (§ 310.12(b)(7)).
(8) Can I add attachments to the Application Form?
Yes, attach any additional information that you feel is necessary. EPA will review all the information that you send.
(9) Do I have to notify EPA before I send an application in, or before I take a response action?
No, you aren't required to notify EPA in either case. We do suggest that you call the National Response Center to report the hazardous substance release, or if you use other response reporting channels, use them. If you need some help before submitting your application, we do suggest you call the LGR Help line (800-431-9209).
(10) If two incidents happen in my town, within hours of each other, do I have to submit two separate applications?
You aren't required to submit separate applications in this case, but if your total response costs are more than $25,000, it may be in your interest to submit separate applications for each single response. (§ 310.9)
29 U.S.C. 655, Pub. L. 99-499.
The substantive provisions found at 29 CFR 1910.120 on and after March 6, 1990, and before March 6, 1990, found at 54 FR 9317 (March 6, 1989), apply to
Section 101(35)(B) of CERCLA, as amended, 42 U.S.C. 9601(35)(B).
(a)
(b)
(1) Persons seeking to establish:
(i) The innocent landowner defense pursuant to CERCLA sections 101(35) and 107(b)(3);
(ii) The bona fide prospective purchaser liability protection pursuant to CERCLA sections 101(40) and 107(r);
(iii) The contiguous property owner liability protection pursuant to CERCLA section 107(q); and
(2) persons conducting site characterization and assessments with the use of a grant awarded under CERCLA section 104(k)(2)(B).
(c)
(2) Persons identified in paragraph (b)(2) of this section must conduct investigations required in this part, including an inquiry by an environmental professional, as required under § 312.21, and the additional inquiries defined in § 312.22, to identify conditions indicative of releases and threatened releases of hazardous substances, as defined in CERCLA section 101(22), and as applicable per the terms and conditions of the grant or cooperative agreement, releases and threatened releases of:
(i) Pollutants and contaminants, as defined in CERCLA section 101(33);
(ii) Petroleum or petroleum products excluded from the definition of “hazardous substance” as defined in CERCLA section 101(14); and
(iii) Controlled substances, as defined in 21 U.S.C. 802.
(d)
(a) Terms used in this part and not defined below, but defined in either CERCLA or 40 CFR part 300 (the National Oil and Hazardous Substances Pollution Contingency Plan) shall have the definitions provided in CERCLA or 40 CFR part 300.
(b) When used in this part, the following terms have the meanings provided as follows:
(1) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of releases or threatened releases (see § 312.1(c)) on, at, in, or to a property, sufficient to meet the objectives and performance factors in § 312.20(e) and (f).
(2) Such a person must:
(i) Hold a current Professional Engineer's or Professional Geologist's license or registration from a state, tribe, or U.S. territory (or the Commonwealth of Puerto Rico) and have the equivalent of three (3) years of full-time relevant experience; or
(ii) Be licensed or certified by the federal government, a state, tribe, or U.S. territory (or the Commonwealth of Puerto Rico) to perform environmental inquiries as defined in § 312.21 and have the equivalent of three (3) years of full-time relevant experience; or
(iii) Have a Baccalaureate or higher degree from an accredited institution of higher education in a discipline of engineering or science and the equivalent of five (5) years of full-time relevant experience; or
(iv) Have the equivalent of ten (10) years of full-time relevant experience.
(3) An environmental professional should remain current in his or her field through participation in continuing education or other activities.
(4) The definition of environmental professional provided above does not preempt state professional licensing or registration requirements such as those for a professional geologist, engineer, or site remediation professional. Before commencing work, a person should determine the applicability of state professional licensing or registration laws to the activities to be undertaken as part of the inquiry identified in § 312.21(b).
(5) A person who does not qualify as an environmental professional under
The following industry standards may be used to comply with the requirements set forth in §§ 312.23 through 312.31:
(a) The procedures of ASTM International Standard E1527-05 entitled “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.”
(b) The procedures of ASTM International Standard E2247-08 entitled “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property.” This standard is available from ASTM International at
(a) “All appropriate inquiries” pursuant to CERCLA section 101(35)(B) must be conducted within one year prior to the date of acquisition of the subject property and must include:
(1) An inquiry by an environmental professional (as defined in § 312.10), as provided in § 312.21;
(2) The collection of information pursuant to § 312.22 by persons identified under § 312.1(b); and
(3) Searches for recorded environmental cleanup liens, as required in § 312.25.
(b) Notwithstanding paragraph (a) of this section, the following components of the all appropriate inquiries must be conducted or updated within 180 days of and prior to the date of acquisition of the subject property:
(1) Interviews with past and present owners, operators, and occupants (see § 312.23);
(2) Searches for recorded environmental cleanup liens (see § 312.25);
(3) Reviews of federal, tribal, state, and local government records (see § 312.26);
(4) Visual inspections of the facility and of adjoining properties (see § 312.27); and
(5) The declaration by the environmental professional (see § 312.21(d)).
(c) All appropriate inquiries may include the results of and information contained in an inquiry previously conducted by, or on the behalf of, persons identified under § 312.1(b) and who are responsible for the inquiries for the subject property, provided:
(1) Such information was collected during the conduct of all appropriate inquiries in compliance with the requirements of CERCLA sections 101(35)(B), 101(40)(B) and 107(q)(A)(viii);
(2) Such information was collected or updated within one year prior to the date of acquisition of the subject property;
(3) Notwithstanding paragraph (b)(2) of this section, the following components of the inquiries were conducted or updated within 180 days of and prior to the date of acquisition of the subject property:
(i) Interviews with past and present owners, operators, and occupants (see § 312.23);
(ii) Searches for recorded environmental cleanup liens (see § 312.25);
(iii) Reviews of federal, tribal, state, and local government records (see § 312.26);
(iv) Visual inspections of the facility and of adjoining properties (see § 312.27); and
(v) The declaration by the environmental professional (see § 312.21(d)).
(4) Previously collected information is updated to include relevant changes in the conditions of the property and specialized knowledge, as outlined in § 312.28, of the persons conducting the all appropriate inquiries for the subject property, including persons identified in § 312.1(b) and the environmental professional, defined in § 312.10.
(d) All appropriate inquiries can include the results of report(s) specified in § 312.21(c), that have been prepared by or for other persons, provided that:
(1) The report(s) meets the objectives and performance factors of this regulation, as specified in paragraphs (e) and (f) of this section; and
(2) The person specified in § 312.1(b) and seeking to use the previously collected information reviews the information and conducts the additional inquiries pursuant to §§ 312.28, 312.29 and 312.30 and the all appropriate inquiries are updated in paragraph (b)(3) of this section, as necessary.
(e)
(1) In performing the all appropriate inquiries, as defined in this section and provided in the standards and practices set forth this subpart, the persons identified under § 312.1(b)(1) and the environmental professional, as defined in § 312.10, must seek to identify through the conduct of the standards and practices set forth in this subpart, the following types of information about the subject property:
(i) Current and past property uses and occupancies;
(ii) Current and past uses of hazardous substances;
(iii) Waste management and disposal activities that could have caused releases or threatened releases of hazardous substances;
(iv) Current and past corrective actions and response activities undertaken to address past and on-going releases of hazardous substances;
(v) Engineering controls;
(vi) Institutional controls; and
(vii) Properties adjoining or located nearby the subject property that have environmental conditions that could have resulted in conditions indicative of releases or threatened releases of hazardous substances to the subject property.
(2) In the case of persons identified in § 312.1(b)(2), the standards and practices for All Appropriate Inquiries set forth in this part are intended to result in the identification of conditions indicative of releases and threatened releases of hazardous substances, pollutants, contaminants, petroleum and petroleum products, and controlled substances (as defined in 21 U.S.C. 802) on, at, in, or to the subject property. In performing the all appropriate inquiries, as defined in this section and provided in the standards and practices set forth in this subpart, the persons identified under § 312.1(b) and the environmental professional, as defined in § 312.10, must seek to identify through the conduct of the standards and practices set forth in this subpart, the following types of information about the subject property:
(i) Current and past property uses and occupancies;
(ii) Current and past uses of hazardous substances, pollutants, contaminants, petroleum and petroleum products, and controlled substances (as defined in 21 U.S.C. 802);
(iii) Waste management and disposal activities;
(iv) Current and past corrective actions and response activities undertaken to address past and on-going releases of hazardous substances pollutants, contaminants, petroleum and petroleum products, and controlled substances (as defined in 21 U.S.C. 802);
(v) Engineering controls;
(vi) Institutional controls; and
(vii) Properties adjoining or located nearby the subject property that have environmental conditions that could have resulted in conditions indicative of releases or threatened releases of hazardous substances, pollutants, contaminants, petroleum and petroleum products, and controlled substances (as defined in 21 U.S.C. 802) to the subject property.
(f)
(1) Gather the information that is required for each standard and practice listed in this subpart that is publicly available, obtainable from its source within reasonable time and cost constraints, and which can practicably be reviewed; and
(2) Review and evaluate the thoroughness and reliability of the information gathered in complying with each standard and practice listed in this subpart taking into account information gathered in the course of complying with the other standards and practices of this subpart.
(g) To the extent there are data gaps (as defined in § 312.10) in the information developed as part of the inquiries in paragraph (e) of this section that affect the ability of persons (including the environmental professional) conducting the all appropriate inquiries to identify conditions indicative of releases or threatened releases in each area of inquiry under each standard and practice such persons should identify such data gaps, identify the sources of information consulted to address such data gaps, and comment upon the significance of such data gaps with regard to the ability to identify conditions indicative of releases or threatened releases of hazardous substances [and in the case of persons identified in § 312.1(b)(2), hazardous substances, pollutants, contaminants, petroleum and petroleum products, and controlled substances (as defined in 21 U.S.C. 802)] on, at, in, or to the subject property. Sampling and analysis may be conducted to develop information to address data gaps.
(h) Releases and threatened releases identified as part of the all appropriate inquiries should be noted in the report of the inquiries. These standards and practices however are not intended to require the identification in the written report prepared pursuant to § 312.21(c) of quantities or amounts, either individually or in the aggregate, of hazardous substances pollutants, contaminants, petroleum and petroleum products, and controlled substances (as defined in 21 U.S.C. 802) that because of said quantities and amounts, generally would not pose a threat to human health or the environment.
(a) Persons identified under § 312.1(b) must undertake an inquiry, as defined in paragraph (b) of this section, by an environmental professional, or conducted under the supervision or responsible charge of, an environmental professional, as defined in § 312.10. Such inquiry is hereafter referred to as “the inquiry of the environmental professional.”
(b) The inquiry of the environmental professional must include the requirements set forth in §§ 312.23 (interviews with past and present owners * * *), 312.24 (reviews of historical sources * * *), 312.26 (reviews of government records), 312.27 (visual inspections), 312.30 (commonly known or reasonably ascertainable information), and 312.31 (degree of obviousness of the presence * * * and the ability to detect the contamination * * *). In addition, the inquiry should take into account information provided to the environmental professional as a result of the additional inquiries conducted by persons identified in § 312.1(b) and in accordance with the requirements of § 312.22.
(c) The results of the inquiry by an environmental professional must be documented in a written report that, at a minimum, includes the following:
(1) An opinion as to whether the inquiry has identified conditions indicative of releases or threatened releases of hazardous substances [and in the case of inquiries conducted for persons
(2) An identification of data gaps (as defined in § 312.10) in the information developed as part of the inquiry that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances [and in the case of inquiries conducted for persons identified in § 312.1(b)(2) conditions indicative of releases and threatened releases of pollutants, contaminants, petroleum and petroleum products, and controlled substances (as defined in 21 U.S.C. 802)] on, at, in, or to the subject property and comments regarding the significance of such data gaps on the environmental professional's ability to provide an opinion as to whether the inquiry has identified conditions indicative of releases or threatened releases on, at, in, or to the subject property. If there are data gaps such that the environmental professional cannot reach an opinion regarding the identification of conditions indicative of releases and threatened releases, such data gaps must be noted in the environmental professional's opinion in paragraph (c)(1) of this section; and
(3) The qualifications of the environmental professional(s).
(d) The environmental professional must place the following statements in the written document identified in paragraph (c) of this section and sign the document:
“[I, We] declare that, to the best of [my, our] professional knowledge and belief, [I, we] meet the definition of Environmental Professional as defined in § 312.10 of this part.”
“[I, We] have the specific qualifications based on education, training, and experience to assess a property of the nature, history, and setting of the subject property. [I, We] have developed and performed the all appropriate inquiries in conformance with the standards and practices set forth in 40 CFR Part 312.”
(a) Persons identified under § 312.1(b) must conduct the inquiries listed in paragraphs (a)(1) through (a)(4) below and may provide the information associated with such inquiries to the environmental professional responsible for conducting the activities listed in § 312.21:
(1) As required by § 312.25 and if not otherwise obtained by the environmental professional, environmental cleanup liens against the subject property that are filed or recorded under federal, tribal, state, or local law;
(2) As required by § 312.28, specialized knowledge or experience of the person identified in § 312.1(b);
(3) As required by § 312.29, the relationship of the purchase price to the fair market value of the subject property, if the property was not contaminated; and
(4) As required by § 312.30, and if not otherwise obtained by the environmental professional, commonly known or reasonably ascertainable information about the subject property.
(a) Interviews with owners, operators, and occupants of the subject property must be conducted for the purposes of achieving the objectives and performance factors of § 312.20(e) and (f).
(b) The inquiry of the environmental professional must include interviewing the current owner and occupant of the subject property. If the property has multiple occupants, the inquiry of the environmental professional shall include interviewing major occupants, as well as those occupants likely to use, store, treat, handle or dispose of hazardous substances [and in the case of inquiries conducted for persons identified in § 312.1(b)(2) pollutants, contaminants, petroleum and petroleum products, and controlled substances (as defined in 21 U.S.C. 802)], or those who have likely done so in the past.
(c) The inquiry of the environmental professional also must include, to the extent necessary to achieve the objectives and performance factors of § 312.20(e) and (f), interviewing one or more of the following persons:
(1) Current and past facility managers with relevant knowledge of uses
(2) Past owners, occupants, or operators of the subject property; or
(3) Employees of current and past occupants of the subject property.
(d) In the case of inquiries conducted at “abandoned properties,” as defined in § 312.10, where there is evidence of potential unauthorized uses of the subject property or evidence of uncontrolled access to the subject property, the environmental professional's inquiry must include interviewing one or more (as necessary) owners or occupants of neighboring or nearby properties from which it appears possible to have observed uses of, or releases at, such abandoned properties for the purpose of gathering information necessary to achieve the objectives and performance factors of § 312.20(e) and (f).
(a) Historical documents and records must be reviewed for the purposes of achieving the objectives and performance factors of § 312.20(e) and (f). Historical documents and records may include, but are not limited to, aerial photographs, fire insurance maps, building department records, chain of title documents, and land use records.
(b) Historical documents and records reviewed must cover a period of time as far back in the history of the subject property as it can be shown that the property contained structures or from the time the property was first used for residential, agricultural, commercial, industrial, or governmental purposes. For the purpose of achieving the objectives and performance factors of § 312.20(e) and (f), the environmental professional may exercise professional judgment in context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records.
(a) All appropriate inquiries must include a search for the existence of environmental cleanup liens against the subject property that are filed or recorded under federal, tribal, state, or local law.
(b) All information collected regarding the existence of such environmental cleanup liens associated with the subject property by persons to whom this part is applicable per § 312.1(b) and not by an environmental professional, may be provided to the environmental professional or retained by the applicable party.
(a) Federal, tribal, state, and local government records or data bases of government records of the subject property and adjoining properties must be reviewed for the purposes of achieving the objectives and performance factors of § 312.20(e) and (f).
(b) With regard to the subject property, the review of federal, tribal, and state government records or data bases of such government records and local government records and data bases of such records should include:
(1) Records of reported releases or threatened releases, including site investigation reports for the subject property;
(2) Records of activities, conditions, or incidents likely to cause or contribute to releases or threatened releases as defined in § 312.1(c), including landfill and other disposal unit location records and permits, storage tank records and permits, hazardous waste handler and generator records and permits, federal, tribal and state government listings of sites identified as priority cleanup sites, and spill reporting records;
(3) CERCLIS records;
(4) Public health records;
(5) Emergency Response Notification System records;
(6) Registries or publicly available lists of engineering controls; and
(7) Registries or publicly available lists of institutional controls, including environmental land use restrictions, applicable to the subject property.
(c) With regard to nearby or adjoining properties, the review of federal, tribal, state, and local government records or databases of government
(1) Properties for which there are government records of reported releases or threatened releases. Such records or databases containing such records and the associated distances from the subject property for which such information should be searched include the following:
(i) Records of NPL sites or tribal- and state-equivalent sites (one mile);
(ii) RCRA facilities subject to corrective action (one mile);
(iii) Records of federally-registered, or state-permitted or registered, hazardous waste sites identified for investigation or remediation, such as sites enrolled in state and tribal voluntary cleanup programs and tribal- and state-listed brownfields sites (one-half mile);
(iv) Records of leaking underground storage tanks (one-half mile); and
(2) Properties that previously were identified or regulated by a government entity due to environmental concerns at the property. Such records or databases containing such records and the associated distances from the subject property for which such information should be searched include the following:
(i) Records of delisted NPL sites (one-half mile);
(ii) Registries or publicly available lists of engineering controls (one-half mile); and
(iii) Records of former CERCLIS sites with no further remedial action notices (one-half mile).
(3) Properties for which there are records of federally-permitted, tribal-permitted or registered, or state-permitted or registered waste management activities. Such records or data bases that may contain such records include the following:
(i) Records of RCRA small quantity and large quantity generators (adjoining properties);
(ii) Records of federally-permitted, tribal-permitted, or state-permitted (or registered) landfills and solid waste management facilities (one-half mile); and
(iii) Records of registered storage tanks (adjoining property).
(4) A review of additional government records with regard to sites identified under paragraphs (c)(1) through (c)(3) of this section may be necessary in the judgment of the environmental professional for the purpose of achieving the objectives and performance factors of § 312.20(e) and (f).
(d) The search distance from the subject property boundary for reviewing government records or databases of government records listed in paragraph (c) of this section may be modified based upon the professional judgment of the environmental professional. The rationale for such modifications must be documented by the environmental professional. The environmental professional may consider one or more of the following factors in determining an alternate appropriate search distance:
(1) The nature and extent of a release;
(2) Geologic, hydrogeologic, or topographic conditions of the subject property and surrounding environment;
(3) Land use or development densities;
(4) The property type;
(5) Existing or past uses of surrounding properties;
(6) Potential migration pathways (e.g., groundwater flow direction, prevalent wind direction); or
(7) Other relevant factors.
(a) For the purpose of achieving the objectives and performance factors of § 312.20(e) and (f), the inquiry of the environmental professional must include:
(1) A visual on-site inspection of the subject property and facilities and improvements on the subject property, including a visual inspection of the areas where hazardous substances may be or may have been used, stored, treated, handled, or disposed. Physical limitations to the visual inspection must be noted.
(2) A visual inspection of adjoining properties, from the subject property line, public rights-of-way, or other vantage point (e.g., aerial photography), including a visual inspection of areas where hazardous substances may be or may have been stored, treated, handled or disposed. Physical limitations to the inspection of adjacent properties must be noted.
(b) Persons conducting site characterization and assessments using a grant awarded under CERCLA section 104(k)(2)(B) must include in the inquiries referenced in § 312.27(a) visual inspections of areas where hazardous substances, and may include, as applicable per the terms and conditions of the grant or cooperative agreement, pollutants and contaminants, petroleum and petroleum products, and controlled substances as defined in 21 U.S.C. 802 may be or may have been used, stored, treated, handled or disposed at the subject property and adjoining properties.
(c) Except as noted in this subsection, a visual on-site inspection of the subject property must be conducted. In the unusual circumstance where an on-site visual inspection of the subject property cannot be performed because of physical limitations, remote and inaccessible location, or other inability to obtain access to the property, provided good faith (as defined in § 312.10) efforts have been taken to obtain such access, an on-site inspection will not be required. The mere refusal of a voluntary seller to provide access to the subject property does not constitute an unusual circumstance. In such unusual circumstances, the inquiry of the environmental professional must include:
(1) Visually inspecting the subject property via another method (such as aerial imagery for large properties), or visually inspecting the subject property from the nearest accessible vantage point (such as the property line or public road for small properties);
(2) Documentation of efforts undertaken to obtain access and an explanation of why such efforts were unsuccessful; and
(3) Documentation of other sources of information regarding releases or threatened releases at the subject property that were consulted in accordance with § 312.20(e). Such documentation should include comments by the environmental professional on the significance of the failure to conduct a visual on-site inspection of the subject property with regard to the ability to identify conditions indicative of releases or threatened releases on, at, in, or to the subject property, if any.
(a) Persons to whom this part is applicable per § 312.1(b) must take into account, their specialized knowledge of the subject property, the area surrounding the subject property, the conditions of adjoining properties, and any other experience relevant to the inquiry, for the purpose of identifying conditions indicative of releases or threatened releases at the subject property, as defined in § 312.1(c).
(b) All appropriate inquiries, as outlined in § 312.20, are not complete unless the results of the inquiries take into account the relevant and applicable specialized knowledge and experience of the persons responsible for undertaking the inquiry (as described in § 312.1(b)).
(a) Persons to whom this part is applicable per § 312.1(b) must consider whether the purchase price of the subject property reasonably reflects the fair market value of the property, if the property were not contaminated.
(b) Persons who conclude that the purchase price of the subject property does not reasonably reflect the fair market value of that property, if the property were not contaminated, must consider whether or not the differential in purchase price and fair market value is due to the presence of releases or threatened releases of hazardous substances.
(c) Persons conducting site characterization and assessments with the use of a grant awarded under CERCLA section 104(k)(2)(B) and who know that the purchase price of the subject property does not reasonably reflect the fair market value of that property, if the property were not contaminated, must consider whether or not the differential in purchase price and fair market value is due to the presence of releases or threatened releases of hazardous substances, pollutants, contaminants, petroleum and petroleum products, or controlled substances as defined in 21 U.S.C. 802.
(a) Throughout the inquiries, persons to whom this part is applicable per § 312.1(b) and environmental professionals conducting the inquiry must take into account commonly known or reasonably ascertainable information within the local community about the subject property and consider such information when seeking to identify conditions indicative of releases or threatened releases, as set forth in § 312.1(c), at the subject property.
(b) Commonly known information may include information obtained by the person to whom this part applies in § 312.1(b) or by the environmental professional about releases or threatened releases at the subject property that is incidental to the information obtained during the inquiry of the environmental professional.
(c) To the extent necessary to achieve the objectives and performance factors of § 312.20(e) and (f), persons to whom this part is applicable per § 312.1(b) and the environmental professional must gather information from varied sources whose input either individually or taken together may provide commonly known or reasonably ascertainable information about the subject property; the environmental professional may refer to one or more of the following sources of information:
(1) Current owners or occupants of neighboring properties or properties adjacent to the subject property;
(2) Local and state government officials who may have knowledge of, or information related to, the subject property;
(3) Others with knowledge of the subject property; and
(4) Other sources of information (e.g., newspapers, Web sites, community organizations, local libraries and historical societies).
(a) Persons to whom this part is applicable per § 312.1(b) and environmental professionals conducting an inquiry of a property on behalf of such persons must take into account the information collected under § 312.23 through 312.30 in considering the degree of obviousness of the presence of releases or threatened releases at the subject property.
(b) Persons to whom this part is applicable per § 312.1(b) and environmental professionals conducting an inquiry of a property on behalf of such persons must take into account the information collected under § 312.23 through 312.30 in considering the ability to detect contamination by appropriate investigation. The inquiry of the environmental professional should include an opinion regarding additional appropriate investigation, if any.
42 U.S.C. 11042, 11043 and 11048 Pub. L. 99-499, 100 Stat. 1747.
(a) All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation;
(b) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State; and
(c) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
(a)
(b)
(c)
(2) Except as provided in § 350.25 of this subpart, request for access to chemical identities withheld as trade secret under this regulation is solely through this regulation and procedures hereunder, not through EPA's Freedom
(3) Request for access to information other than chemical identity submitted to EPA under this regulation is through EPA's Freedom of Information Act regulations at 40 CFR part 2.
(a) A claim of trade secrecy may be made only for the specific chemical identity of an extremely hazardous substance under sections 303 (d)(2) and (d)(3), a hazardous chemical under sections 311 and 312, and a toxic chemical under section 313.
(b) Method of asserting claims of trade secrecy for information submitted under sections 303 (d)(2) and (d)(3).
(1) In submitting information to the local emergency planning committee under sections 303 (d)(2) or (d)(3), the submitter may claim as trade secret the specific chemical identity of any chemical subject to reporting under section 303.
(2) To make a claim, the submitter shall submit to EPA the following:
(i) A copy of the information which is being submitted under sections 303 (d)(2) or (d)(3) to the local emergency planning committee, with the chemical identity or identities claimed trade secret deleted, and the generic class or category of the chemical identity or identities inserted in its place. The method of choosing generic class or category is set forth in paragraph (f) of this section.
(ii) A sanitized and unsanitized substantiation in accordance with § 350.7 for each chemical identity claimed as trade secret.
(3) If the submitter wishes to claim information in the substantiation as trade secret or business confidential, it shall do so in accordance with § 350.7(d).
(4) Section 303 claims shall be sent to the address specified in § 350.16 of this regulation.
(c) Method of asserting claims of trade secrecy for information submitted under section 311.
(1) Submitters may claim as trade secret the specific chemical identity of any chemical subject to reporting under section 311 on the material safety data sheet or chemical list under section 311.
(2) To assert a claim for a chemical identity on a material safety data sheet under section 311, the submitter shall submit to EPA the following:
(i) One copy of the material safety data sheet which is being submitted to the State emergency response commission, the local emergency planning committee and the local fire department, which shall make it available to the public. In place of the specific chemical identity claimed as trade secret, the generic class or category of the chemical claimed as trade secret shall be inserted. The method of choosing generic class or category is set forth in paragraph (f) of this section.
(ii) A sanitized and unsanitized substantiation in accordance with § 350.7 for every chemical identity claimed as trade secret.
(3) To assert a claim for a chemical identity on a list under section 311, the submitter shall submit to EPA the following:
(i) An unsanitized copy of the chemical list under section 311. The submitter shall clearly indicate the specific chemical identity claimed as trade secret, and shall label it
(ii) A sanitized copy of the chemical list under section 311. This copy shall be identical to the document in paragraph (c)(3)(i) of this section except that the submitter shall delete the chemical identity claimed as trade secret, leaving in place the generic class or category of the chemical claimed as trade secret. This copy shall be sent by the submitter to the State emergency response commission, the local emergency planning committee and the local fire department, which shall make it available to the public.
(iii) A sanitized and unsanitized substantiation in accordance with § 350.7 for every chemical identity claimed as trade secret.
(4) If the submitter wishes to claim information in the substantiation as
(5) Section 311 claims shall be sent to the address specified in § 350.16 of this regulation.
(d) Method of asserting claims of trade secrecy for information submitted under section 312.
(1) Submitters may claim as trade secret the specific chemical identity of any chemical subject to reporting under section 312.
(2) To assert a claim the submitter shall submit to EPA the following:
(i) An unsanitized copy of the Tier II emergency and hazardous chemical inventory form under section 312. (The Tier I emergency and hazardous chemical inventory form does not require the reporting of specific chemical identity and therefore no trade secrecy claims may be made with respect to that form.) The submitter shall clearly indicate the specific chemical identity claimed as trade secret by checking the box marked “trade secret” next to the claimed chemical identity.
(ii) A sanitized copy of the Tier II emergency and hazardous chemical inventory form. This copy shall be identical to the document in paragraph (d)(2)(i) of this section except that the submitter shall delete the chemical identity or identities claimed as trade secret and include instead the generic class or category of the chemical claimed as trade secret. The method of choosing generic class or category is set forth in paragraph (f) of this section. The sanitized copy shall be sent by the submitter to the State emergency response commission, local emergency planning committee or the local fire department, whichever entity requested the information.
(iii) A sanitized and unsanitized substantiation in accordance with § 350.7 for every chemical identity claimed as trade secret.
(3) If the submitter wishes to claim information in the substantiation as trade secret or business confidential, it shall do so in accordance with § 350.7(d).
(4) Section 312 claims shall be sent to the address specified in § 350.16 of this regulation.
(e) Method of asserting claims of trade secrecy for information submitted under section 313.
(1) Submitters may claim as trade secret the specific chemical identity of any chemical subject to reporting under section 313.
(2) To make a claim, the submitter shall submit to EPA the following:
(i) An unsanitized copy of the toxic release inventory form under section 313 with the information claimed as trade secret clearly identified. To do this, the submitter shall check the box on the form indicating that the chemical identity is being claimed as trade secret. The submitter shall enter the generic class or category that is structurally descriptive of the chemical, as specified in paragraph (f) of this section.
(ii) A sanitized copy of the toxic release inventory form. This copy shall be identical to the document in paragraph (e)(2)(i) of this section except that the submitter shall delete the chemical identity claimed as trade secret. This copy shall also be submitted to the State official or officials designated to receive this information.
(iii) A sanitized and unsanitized substantiation in accordance with § 350.7 for every chemical identity claimed as trade secret.
(3) If the submitter wishes to claim information in the substantiation as trade secret or business confidential, it shall do so in accordance with § 350.7(d).
(4) Section 313 claims shall be sent to the address specified in § 350.16 of this regulation.
(f) Method of choosing generic class or category for sections 303, 311, 312 and 313. A facility owner or operator claiming chemical identity as trade secret should choose a generic class or category for the chemical that is structurally descriptive of the chemical.
(g) If a specific chemical identity is submitted under Title III to EPA, or to a State emergency response commission, designated State agency, local emergency planning committee or local fire department, without asserting a trade secrecy claim, the chemical identity shall be considered to have been voluntarily disclosed, and non-trade secret.
(h) A submitter making a trade secrecy claim under this section shall submit to entities other than EPA (e.g., a designated State agency, local
(a) Claims of trade secrecy must be substantiated by providing a specific answer including, where applicable, specific facts, to each of the following questions with the submission to which the trade secrecy claim pertains. Submitters must answer these questions on the form entitled “Substantiation to Accompany Claims of Trade Secrecy” in § 350.27 of this subpart.
(1) Describe the specific measures you have taken to safeguard the confidentiality of the chemical identity claimed as trade secret, and indicate whether these measures will continue in the future.
(2) Have you disclosed the information claimed as trade secret to any other person (other than a member of a local emergency planning committee, officer or employee of the United States or a State or local government, or your employee) who is not bound by a confidentiality agreement to refrain from disclosing this trade secret information to others?
(3) List all local, State, and Federal government entities to which you have disclosed the specific chemical identity. For each, indicate whether you asserted a confidentiality claim for the chemical identity and whether the government entity denied that claim.
(4) In order to show the validity of a trade secrecy claim, you must identify your specific use of the chemical claimed as trade secret and explain why it is a secret of interest to competitors. Therefore:
(i) Describe the specific use of the chemical claimed as trade secret, identifying the product or process in which it is used. (If you use the chemical other than as a component of a product or in a manufacturing process, identify the activity where the chemical is used.)
(ii) Has your company or facility identity been linked to the specific chemical identity claimed as trade secret in a patent, or in publications or other information sources available to the public or your competitors (of which you are aware)? If so, explain why this knowledge does not eliminate the justification for trade secrecy.
(iii) If this use of the chemical claimed as trade secret is unknown outside your company, explain how your competitors could deduce this use from disclosure of the chemical identity together with other information on the Title III submittal form.
(iv) Explain why your use of the chemical claimed as trade secret would be valuable information to your competitors.
(5) Indicate the nature of the harm to your competitive position that would likely result from disclosure of the specific chemical identity, and indicate why such harm would be substantial.
(6)(i) To what extent is the chemical claimed as trade secret available to the public or your competitors in products, articles, or environmental releases?
(ii) Describe the factors which influence the cost of determining the identity of the chemical claimed as trade secret by chemical analysis of the product, article, or waste which contains the chemical (e.g., whether the chemical is in pure form or is mixed with other substances).
(b) The answers to the substantiation questions listed in paragraph (a) of this section are to be submitted on the form in § 350.27 of this subpart, and included with a submitter's trade secret claim.
(c) An owner, operator or senior official with management responsibility shall sign the certification at the end of the form contained in § 350.27. The certification in both the sanitized and unsanitized versions of the substantiation must bear an original signature.
(d)
(2) An owner, operator, or senior official with management responsibility shall sign the certification stating that those portions of the substantiation claimed as confidential would, if disclosed, reveal the chemical identity being claimed as a trade secret, or would reveal other confidential business or trade secret information. This certification is combined on the substantiation form in § 350.27 with the certification described in paragraph (c) of this section.
(3) The submitter shall submit to EPA two copies of the substantiation, one of which shall be the unsanitized version, and the other shall be the sanitized version.
(i) The unsanitized copy shall contain all of the information claimed as trade secret or business confidential, marked as indicated in paragraph (d)(1) of this section.
(ii) The second copy shall be identical to the unsanitized substantiation except that it will be a sanitized version, in which all of the information claimed as trade secret or confidential shall be deleted. If any of the information claimed as trade secret in the substantiation is the chemical identity which is the subject of the substantiation, the submitter shall include the appropriate generic class or category of the chemical claimed as trade secret. This sanitized copy shall be submitted to the State emergency response commission, a designated State agency, the local emergency planning committee and the local fire department, as appropriate, and made publicly available.
(e)
(2) The submitter may claim as confidential any trade secret or confidential business information contained in the supplemental information. To claim this material as confidential, the submitter shall clearly designate those portions of the supplemental information to be claimed as confidential by marking those portions “Confidential,” or “Trade Secret.” Information not so marked will be treated as public and may be disclosed without notice to the submitter.
(3) If portions of the supplementary information are claimed confidential, an owner, operator, or senior official with management responsibility of the submitter shall certify that those portions of the supplemental information claimed as confidential would, if disclosed, reveal the chemical identity being claimed as confidential or would reveal other confidential business or trade secret information.
(4) If supplemental information is requested by EPA and the submitter claims portions of it as trade secret or confidential, then the submitter shall submit to EPA two copies of the supplemental information, an unsanitized and a sanitized version.
(i) The unsanitized version shall contain all of the information claimed as trade secret or business confidential, marked as indicated above in paragraph (e)(2) of this section.
(ii) The second copy shall be identical to the unsanitized substantiation except that it will be a sanitized version, in which all of the information claimed as trade secret or confidential shall be deleted. If any of the information claimed as trade secret in the supplemental information is the chemical identity which is the subject of the substantiation, the submitter shall include the appropriate generic class or category of the chemical claimed as trade secret.
(a) When a claim of trade secrecy, made in accordance with § 350.5 of this part, is received by EPA, that information is treated as confidential until a contrary determination is made.
(b) A determination as to the validity of a trade secrecy claim shall be initiated upon receipt by EPA of a petition under § 350.15 or may be initiated at
(c) If EPA initiates a determination as to the validity of a trade secrecy claim, the procedures set forth in §§ 350.11, 350.15, and 350.17 shall be followed in making the determination.
(d) When EPA receives a petition requesting disclosure of trade secret chemical identity or if EPA decides to initiate a determination of the validity of a trade secrecy claim for chemical identity, EPA shall first make a determination that the chemical identity claimed as trade secret is not the subject of a prior trade secret determination by EPA concerning the same submitter and facility, or if it is, that the prior determination upheld the submitter's claim of trade secrecy for that chemical identity at that facility.
(1) If EPA determines that the chemical identity claimed as trade secret is not the subject of a prior trade secret determination by EPA concerning the same submitter and the same facility, or if it is, that the prior determination upheld the submitter's claim of trade secrecy, then EPA shall review the submitter's claim according to § 350.1l.
(2) If such a prior determination held that the submitter's claim for that chemical identity is invalid, and such determination was not challenged by appeal to the General Counsel, or by review in the District Court, or, if challenged, was upheld, EPA shall notify the submitter by certified mail (return receipt requested) that the chemical identity claimed as trade secret is the subject of a prior, final Agency determination concerning the same facility in which it was held that such a claim was invalid. In this notification EPA shall include notice of intent to disclose chemical identity within 10 days pursuant to § 350.18(c) of this subpart. EPA shall also notify the petitioner by regular mail of the action taken pursuant to this section.
(a)
(1)
(2)
(i)
(ii)
(iii) Good cause is limited to one or more of the following reasons:
(A) The submitter was not aware of the facts underlying the additional information at the time the substantiation was submitted, and could not reasonably have known the facts at that time; or
(B) EPA regulations and other EPA guidance did not call for such information at the time the substantiation was submitted; or
(C) The submitter had made a good faith effort to submit a complete substantiation, but failed to do so due to an inadvertent omission or clerical error.
(iv) If EPA determines that the submitter has met the standard for good cause, then EPA shall decide, pursuant to paragraph (a) of this section, whether the submitter's claim meets the Agency's standards of sufficiency set forth in § 350.13.
(A) If after receipt of additional material for good cause, EPA decides the claim is sufficient, EPA will determine whether the claim presents a valid claim of trade secrecy according to the procedures set forth in paragraph (b) of this section.
(B) If after receipt of additional material for good cause, EPA decides the claim is insufficient, EPA will notify the submitter by certified mail (return receipt requested) and the submitter may seek review in U.S. District Court within 30 days of receipt of the notice. The notice required by this paragraph shall include EPA's reasons for its determination, and shall inform the submitter of its right to seek review in U.S. District Court within 30 days of receipt of the notice. The petitioner shall be notified of EPA's decision by regular mail.
(v) If EPA determines that the submitter has not met the standard for good cause, then EPA shall notify the submitter by certified mail (return receipt requested). The submitter may seek review of EPA's decision in U.S. District Court within 30 days of receipt of the notice. The notice required in this paragraph shall include EPA's reasons for its determination, and shall inform the submitter of its right to seek review in U.S. District Court within 30 days of receipt of the notice. The petitioner shall be notified of EPA's decision by regular mail.
(b) Determination of trade secrecy. Once a claim has been determined to be sufficient under paragraph (a) of this section, EPA must decide whether the claim is entitled to trade secrecy.
(1) If EPA determines that the information submitted in support of the trade secrecy claim is true and that the chemical identity is a trade secret, the petitioner shall be notified by certified mail (return receipt requested) of EPA's determination and may bring an action in U.S. District Court within 30 days of receipt of such notice. The notice required in this paragraph shall include the reasons why EPA has determined that the chemical identity is a trade secret and shall inform the petitioner of its right to seek review in U.S. District Court within 30 days of
(2) If EPA decides that the information submitted in support of the trade secrecy claim is not true and that the chemical identity is not a trade secret:
(i) The submitter shall be notified by certified mail (return receipt requested) of EPA's determination and may appeal to the General Counsel within 30 days of receipt of such notice, in accordance with the procedures set forth in § 350.17. The notice required by this paragraph shall include the reasons why EPA has determined that the chemical identity is not a trade secret and shall inform the submitter of its appeal rights to EPA's General Counsel. The notice shall include the address to which an appeal should be sent and the procedure for filing an appeal, as set forth in § 350.17(a) of this subpart. The petitioner shall be notified of EPA's decision by regular mail.
(ii) The General Counsel shall notify the submitter by certified mail (return receipt requested) of its decision on appeal pursuant to the requirements in § 350.17. The notice required by this paragraph shall include the reasons for EPA's determination. If the General Counsel affirms the decision that the chemical identity is not a trade secret, then the submitter shall have 30 days from the date it receives notice of the General Counsel's decision to bring an action in U.S. District Court. If the General Counsel decides that the chemical identity is a trade secret, then EPA shall follow the procedure set forth in paragraph (b)(1) of this section.
(a) A substantiation submitted under § 350.7 will be determined to be insufficient to support a claim of trade secrecy unless the answers to the questions in the substantiation submitted under § 350.7 support all of the following conclusions. This substantiation must include, where applicable, specific facts.
(1) The submitter has not disclosed the information to any other person, other than a member of a local emergency planning committee, an officer or employee of the United States or a State or local government, an employee of such person, or a person who is bound by a confidentiality agreement, and such person has taken reasonable measures to protect the confidentiality of such information and intends to continue to take such measures. To support this conclusion, the facts asserted must show all of the following:
(i) The submitter has taken reasonable measures to prevent unauthorized disclosure of the specific chemical identity and will continue to take such measures.
(ii) The submitter has not disclosed the specific chemical identity to any person who is not bound by an agreement to refrain from disclosing the information.
(iii) The submitter has not previously disclosed the specific chemical identity to a local, State, or Federal government entity without asserting a confidentiality claim.
(2) The information is not required to be disclosed, or otherwise made available, to the public under any other Federal or State law.
(3) Disclosure of the information is likely to cause substantial harm to the competitive position of such person. To support this conclusion, the facts asserted must show all of the following:
(i)
(B) Competitors are not aware or the submitter does not know whether competitors are aware that the submitter is using this chemical in this fashion.
(ii) The fact that the submitter manufactures, imports or otherwise uses this chemical in a particular fashion is not contained in any publication or other information source (of which the submitter is aware) available to competitors or the public.
(iii) The non-confidential version of the submission under this title does not contain sufficient information to enable competitors to determine the
(iv) The information referred to in paragraph (a)(3)(i)(A) of this section, is of value to competitors.
(v) Competitors are likely to use this information to the economic detriment of the submitter and are not precluded from doing so by a United States patent.
(vi) The resulting harm to submitter's competitive position would be substantial.
(4) The chemical identity is not readily discoverable through reverse engineering. To support this conclusion, the facts asserted must show that competitors cannot readily discover the specific chemical identity by analysis of the submitter's products or environmental releases.
(b) The sufficiency of the trade secrecy claim shall be decided entirely upon the information submitted under § 350.7, or § 350.11(a)(2)(ii).
(a) The public may request the disclosure of chemical identity claimed as trade secret by submitting a written petition to the address specified in § 350.16.
(b) The petition shall include:
(1) The name, address, and telephone number of the petitioner;
(2) The name and address of the company claiming the chemical identity as trade secret; and
(3) A copy of the submission in which the submitter claimed chemical identity as trade secret, with a specific indication as to which chemical identity the petitioner seeks disclosed.
(c) EPA shall acknowledge, by letter to the petitioner, the receipt of the petition.
(d) Incomplete petitions. If the information contained in the petition is not sufficient to allow EPA to identify which chemical identity the petitioner is seeking to have released, EPA shall notify the petitioner that the petition cannot be further processed until additional information is furnished. EPA will make every reasonable effort to assist a petitioner in providing sufficient information for EPA to identify the chemical identity the petitioner is seeking to have released.
(e) EPA shall make a determination on a petition requesting disclosure, in accordance with § 350.11 and § 350.17, within nine months of receipt of such petition.
The address and location to send all claims of trade secrecy under sections 303(d)(2) and (d)(3), 311, 312, and 313 of Title III and all public petitions requesting disclosure of chemical identities claimed as trade secret are posted on the following EPA Program Web sites,
(a)
(1) A letter requesting review of the appealed decision; and
(2) A copy of the letter containing EPA's decision upon which appeal is requested.
(b) Appeal of determination of insufficient claim.
(1) Where a submitter appeals a determination by EPA under § 350.11(a)(2)(i) that the trade secrecy claim presents insufficient support for a finding of trade secrecy, the General Counsel shall make one of the following determinations:
(i) The trade secrecy claim at issue meets the standards of sufficiency set forth in § 350.13; or
(ii) The trade secrecy claim at issue does not meet the standards of sufficiency set forth in § 350.13.
(2) If the General Counsel reverses the decision made by the EPA office handling the claim, the claim shall be processed according to § 350.11(a)(1). The General Counsel shall notify the submitter of the determination on appeal in writing, by certified mail (return receipt requested). The appeal determination shall include the date the appeal was received by the General Counsel, a statement of the decision appealed from, a statement of the decision on appeal and the reasons for such decision.
(3) If the General Counsel upholds the determination of insufficiency made by the EPA office handling the claim, the submitter may seek review in U.S. District Court within 30 days after receipt of notice of the General Counsel's determination. The General Counsel shall notify the submitter of its determination on appeal in writing, by certified mail (return receipt requested). The appeal determination shall include the date the appeal was received by the General Counsel, a statement of the decision appealed from, a statement of the decision on appeal and the reasons for such decision, and a statement of the submitter's right to seek review in U.S. District Court within 30 days of receipt of such notice. The petitioner shall be notified by regular mail.
(c)
(i) The assertions supporting the claim of trade secrecy are true and the chemical identity is a trade secret; or
(ii) The assertions supporting the claim of trade secrecy are not true and the chemical identity is not a trade secret.
(2) If the General Counsel reverses the decision made by the EPA office handling the claim, the General Counsel shall notify the submitter of its determination on appeal in writing, by certified mail (return receipt requested). The appeal determination shall include the date the appeal was received by the General Counsel, a statement of the decision appealed from, a statement of the decision on appeal and the reasons for such decision. The General Counsel shall send the petitioner the notice required in § 350.11(b)(1).
(3) If the General Counsel upholds the decision of the EPA office which made the trade secret determination, the submitter may seek review in U.S. District Court within 30 days of receipt of notice of the General Counsel's decision. The General Counsel shall notify the submitter of the determination on appeal in writing, by certified mail (return receipt requested). The notice shall include the date the appeal was received by the General Counsel, a statement of the decision appealed from, the basis for the appeal determination, that it constitutes final Agency action concerning the chemical identity trade secrecy claim, and that such final Agency action may be subject to review in U.S. District Court within 30 days of receipt of such notice. The General Counsel shall notify the petitioner by regular mail.
(a) Where a submitter fails to seek review within U.S. District Court within 20 days of receiving notice of a determination of the General Counsel under § 350.17(b)(3) of this subpart that the trade secrecy claim is insufficient, or under § 350.17(c)(3) of this subpart that chemical identity claimed as trade secret is not entitled to trade secret protection, EPA may furnish notice of intent to disclose the chemical identity claimed as trade secret within 10 days by furnishing the submitter with the notice set forth in paragraph (d) of this section by certified mail (return receipt requested).
(b) Where a submitter fails to seek review within U.S. District Court within 20 days of receiving notice of an EPA determination under
(c) Where EPA, upon initial review under § 350.9(d), determines that the chemical identity claimed as trade secret in a submittal submitted pursuant to this part is the subject of a prior final Agency determination concerning a claim of trade secrecy for the same chemical identity for the same facility, in which such claim was held invalid, EPA shall furnish notice of intent to disclose chemical identity within l0 days by furnishing the submitter with the notice set forth in paragraph (d) of this section by certified mail (return receipt requested).
(d) EPA shall furnish notice of its intent to release chemical identity claimed as trade secret by sending the following notification to submitters, under the circumstances set forth in paragraphs (a), (b), and (c) of this section. The notice shall state that EPA will make the chemical identity available to the petitioner and the public on the tenth working day after the date of the submitter's receipt of written notice (or on such later date as the Office of General Counsel may establish), unless the Office of General Counsel has first been notified of the submitter's commencement of an action in Federal court to obtain judicial review of the determination at issue, and to obtain preliminary injunctive relief against disclosure, or, where applicable, as described in paragraph (b) of this section, of commencement of an appeal to the General Counsel. The notice shall further state that if Federal court action is timely commenced, EPA may nonetheless make the information available to the petitioner and the public (in the absence of an order by the court to the contrary), once the court has denied a motion for a preliminary injunction in the action or has otherwise upheld the EPA determination, or, that if Federal court action or appeal to the General Counsel is timely commenced, EPA may nonetheless make the information available to the petitioner and the public whenever it appears to the General Counsel, after reasonable notice to the submitter, that the submitter is not taking appropriate measures to obtain a speedy resolution of the action.
(a) Any State may request access to trade secrecy claims, substantiations, supplemental substantiations, and additional information submitted to EPA. EPA shall release this information, even if claimed confidential, to any State requesting access if:
(1) The request is in writing;
(2) The request is from the Governor of the State; and
(3) The State agrees to safeguard the information with procedures equivalent to those which EPA uses to safeguard the information.
(b) The Governor of a State which receives access to trade secret information under this section may disclose such information only to State employees.
The Governor or State emergency response commission shall identify the adverse health effects associated with each of the chemicals claimed as trade secret and shall make this information available to the public. The material safety data sheets submitted to the State emergency response commissions may be used for this purpose.
(a) Under section 322(f) of the Act, EPA possesses the authority to disclose to any authorized representative of the United States any information to which this section applies, notwithstanding the fact that the information might otherwise be entitled to trade secret or confidential treatment under this part. Such authority may be exercised only in accordance with paragraph (b) of this section.
(b)(1) A person under contract or subcontract to EPA or a grantee who performs work for EPA in connection with
(2) No information shall be disclosed under this § 350.23(b) unless this contract, subcontract, or grant in question provides:
(i) That the contractor, subcontractor or the grantee and the contractor's, subcontractor's, or grantee's employees shall use the information only for the purpose of carrying out the work required by the contract, subcontract, or grant, and shall refrain from disclosing the information to anyone other than EPA without the prior written approval of each affected submitter or of an EPA legal office, and shall return to EPA all copies of the information (and any abstracts or extracts therefrom) upon request by the EPA program office, whenever the information is no longer required by the contractor, subcontractor or grantee for the performance of the work required under the contract, subcontract or grant, or upon completion of the contract, subcontract or grant;
(ii) That the contractor, subcontractor or grantee shall obtain a written agreement to honor such terms of the contract or subcontract from each of the contractor's, subcontractor's or grantee's employees who will have access to the information, before such employee is allowed such access; and
(iii) That the contractor, subcontractor or grantee acknowledges and agrees that the contract, subcontract or grant provisions concerning the use and disclosure of confidential business information are included for the benefit of, and shall be enforceable by, both EPA and any covered facility having an interest in information concerning it supplied to the contractor, subcontractor or grantee by EPA under the contract or subcontract or grant.
(3) No information shall be disclosed under this § 350.23(b) until each affected submitter has been furnished notice of the contemplated disclosure by the EPA program office and has been afforded a period found reasonable by that office (not less than 5 working days) to submit its comments. Such notice shall include a description of the information to be disclosed, the identity of the contractor, subcontractor or grantee, the contract, subcontract or grant number, if any, and the purposes to be served by the disclosure. This notice may be published in the
(4) The EPA program office shall prepare a record of disclosures under this § 350.23(b). The EPA program office shall maintain the record of disclosure and the determination of necessity prepared under paragraph (b)(1) of this section for a period of not less than 36 months after the date of the disclosure.
Other disclosure of specific chemical identity may be made in accordance with 40 CFR 2.209.
(a) The substantiation form to accompany claims of trade secrecy must be completed and submitted as required in § 350.7(a). The form is posted on the Chemical Emergency Preparedness and Prevention Office Web site,
(b) Substantiation form to accompany claims of trade secrecy.
EPA requires that the information requested in a trade secret substantiation be completed using this substantiation form in order to ensure that all facility and chemical identifier information, substantiation questions, and certification statements are completed. Submitter-devised forms will not be accepted. Incomplete substantiations will in all likelihood be found insufficient to support the claim, and the claim will be denied.
The statute for section 322 establishes a two-phase process in which the submitter must do the following:
1. At the time a report is submitted, the submitter must present a complete set of assertions that (if true) would be sufficient to justify the claim of trade secrecy; and
2. If the claim is reviewed by EPA, the submitter will be asked to provide additional factual information sufficient to establish the truthfulness of the assertions made at the time the claim was made.
In making its assertions of trade secrecy, a submitter should provide, where applicable, descriptive factual statements. Conclusory statements of compliance (such as positive or negative restatements of the questions) may not provide EPA with enough information to make a determination and may be found insufficient to support a claim.
Only the specific chemical identity required to be disclosed in sections 303, 311, 312, and 313 submissions may be claimed trade secret on the Title III submittal itself. (Other trade secret or confidential business information included in answer to a question on the substantiation may be claimed trade secret or confidential, as described below.)
Location information claimed as confidential under section 312(d)(2)(F) should
You must submit this form to EPA in sanitized and unsanitized versions, along with the sanitized and unsanitized copies of the submittal that gives rise to this trade secrecy claim (except for the section 303 submittal, and for MSDSs under section 311). The
Each question on this form must be answered.
The sanitized and unsanitized report forms and trade secret substantiations must be submitted to EPA by the normal reporting deadline for that section (e.g., section 313 submissions for any calendar year must be submitted on or before July 1 of the following year).
The address to send all trade secrecy claims is posted on the following EPA Program Web sites,
A completed section 322 claim package must include four items, packaged in the following order:
1. An unsanitized trade secret substantiation form.
2. A sanitized trade secret substantiation form.
3. An unsanitized 312 or 313 report (it is not necessary to create an unsanitized section 303 submittal or MSDS for submission under section 311).
4. A sanitized (public) section 303, 311, 312, or 313 or report.
It is important to securely fasten together (binder clip or rubber band) each of the reporting forms and substantiations for the particular chemical being claimed trade secret. This process will make it clear that a claim is physically complete when submitted. When submitters submit claims for more than one chemical, EPA requests that the four parts associated with each chemical be assembled as a set and each set for different chemicals be kept separate within the package sent to EPA. Following these guidelines permits the Agency to make the appropriate determinations of trade secrecy, and to make public only those portions of each submittal required to be disclosed.
Additional copies of the Trade Secret Substantiation Form may be obtained by writing to: Emergency Planning and Community Right-to-Know Program, U.S. Environmental Protection Agency, WH-562A, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
The six questions posed in this form are based on the four statutory criteria found in section 322(b) of Title III. The information you submit in response to these questions is the basis for EPA's initial determination as to whether the substantiation is sufficient to support a claim of trade secrecy. EPA has indicated in § 350.13 of the final rule the specific criteria that it regards as the legal basis for evaluating whether the answers you have provided are sufficient to warrant protection of the chemical identity. You are urged to review those criteria before preparing answers to the questions on the form.
An
b. Definition of trade secret. A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. It differs from other secret information in a business (see section 759) in that it is not simply information as to single or ephemeral events in the conduct of the business, as, for example, the amount or other terms of a secret bid for a contract or the salary of certain employees, or the security investments made or contemplated, or the date fixed for the announcement of a new policy or for bringing out a new model or the like. A trade secret is a process or device for continuous use in the operation of the business. Generally it relates to the production of goods, as, for example, a machine or formula for the production of an article. It may, however, relate to the sale of goods or to other operations in the business, such as a code for determining discounts, rebates or other concessions in a price list or catalogue, or a list of specialized customers, or a method of bookkeeping or other office management.
Secrecy. The subject matter of a trade secret must be secret. Matters of public knowledge or of general knowledge in an industry cannot be appropriated by one as his secret. Matters which are completely disclosed by the goods which one markets cannot be his secret. Substantially, a trade secret is known only in the particular business in which it is used. It is not requisite that only the proprietor of the business know it. He may, without losing his protection, communicate it to employees involved in its use. He may likewise communicate it to others pledged to secrecy. Others may also know of it independently, as, for example, when they have discovered the process or formula by independent invention and are keeping it secret. Nevertheless, a substantial element of secrecy must exist, so that, except by the use of improper means, there would be difficulty in acquiring the information. An exact definition of a trade secret is not possible. Some factors to be considered in determining whether given information is one's trade secret are: (1) The extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or
Novelty and prior art. A trade secret may be a device or process which is patentable; but it need not be that. It may be a device or process which is clearly anticipated in the prior art or one which is merely a mechanical improvement that a good mechanic can make. Novelty and invention are not requisite for a trade secret as they are for patentability. These requirements are essential to patentability because a patent protects against unlicensed use of the patented device or process even by one who discovers it properly through independent research. The patent monopoly is a reward to the inventor. But such is not the case with a trade secret. Its protection is not based on a policy of rewarding or otherwise encouraging the development of secret processes or devices. The protection is merely against breach of faith and reprehensible means of learning another's secret. For this limited protection it is not appropriate to require also the kind of novelty and invention which is a requisite of patentability. The nature of the secret is, however, an important factor in determining the kind of relief that is appropriate against one who is subject to liability under the rule stated in this section. Thus, if the secret consists of a device or process which is a novel invention, one who acquires the secret wrongfully is ordinarily enjoined from further use of it and is required to account for the profits derived from his past use. If, on the other hand, the secret consists of mechanical improvements that a good mechanic can make without resort to the secret, the wrongdoer's liability may be limited to damages, and an injunction against future use of the improvements made with the aid of the secret may be inappropriate.
(a)
(b) The specific chemical identity, including the chemical name of a hazardous chemical, extremely hazardous substance, or a toxic chemical, is made available to health professionals, in accordance with the applicable provisions of this section.
(c)
(i) The request is in writing;
(ii) The request describes why the health professional has a reasonable basis to suspect that:
(A) The specific chemical identity is needed for purposes of diagnosis or treatment of an individual,
(B) The individual or individuals being diagnosed or treated have been exposed to the chemical concerned, and
(C) Knowledge of the specific chemical identity of such chemical will assist in diagnosis or treatment.
(iii) The request contains a confidentiality agreement which includes:
(A) A description of the procedures to be used to maintain the confidentiality of the disclosed information; and
(B) A statement by the health professional that he will not use the information for any purpose other than the health needs asserted in the statement of need authorized in paragraph (c)(1)(ii) of this section and will not release the information under any circumstances, except as authorized by the terms of the confidentiality agreement or by the owner or operator of the facility providing such information.
(iv) The request includes a certification signed by the health professional stating that the information contained in the statement of need is true.
(2) Following receipt of a written request, the facility owner or operator to whom such request is made shall provide the requested information to the health professional promptly.
(d)
(i) The requester is a local government employee or a person under contract with the local government;
(ii) The request is in writing;
(iii) The request describes with reasonable detail one or more of the following health needs for the information:
(A) To assess exposure of persons living in a local community to the hazards of the chemical concerned.
(B) To conduct or assess sampling to determine exposure levels of various population groups.
(C) To conduct periodic medical surveillance of exposed population groups.
(D) To provide medical treatment to exposed individuals or population groups.
(E) To conduct studies to determine the health effects of exposure.
(F) To conduct studies to aid in the identification of chemicals that may reasonably be anticipated to cause an observed health effect.
(iv) The request contains a confidentiality agreement which includes:
(A) A description of the procedures to be used to maintain the confidentiality of the disclosed information; and
(B) A statement by the health professional that he will not use the information for any purpose other than the health needs asserted in the statement of need authorized in paragraph (d)(1)(iii) of this section and will not release the information under any circumstances except as may otherwise be authorized by the terms of such agreement or by the owner or operator of the facility person providing such information.
(v) The request includes a certification signed by the health professional stating that the information contained in the statement of need is true.
(2) Following receipt of a written request, the facility owner or operator to whom such request is made shall promptly provide the requested information to the local health professional.
(e)
(i) A medical emergency exists as to the individual or individuals being diagnosed or treated;
(ii) The specific chemical identity of the chemical concerned is necessary for or will assist in emergency or first-aid diagnosis or treatment; and,
(iii) The individual or individuals being diagnosed or treated have been exposed to the chemical concerned.
(2) Owners or operators of facilities must provide the specific chemical identity to the requesting treating physician or nurse immediately following the request, without requiring a written statement of need or a confidentiality agreement in advance.
(3) The owner or operator may require a written statement of need and a written confidentiality agreement as soon as circumstances permit. The written statement of need shall describe in reasonable detail the factors set forth in paragraph (e)(1) of this section. The written confidentiality agreement shall be in accordance with paragraphs (c)(1)(iii) and (f) of this section.
(f)
(i) May restrict the use of the information to the health purposes indicated in the written statement of need;
(ii) May provide for appropriate legal remedies in the event of a breach of the agreement; and
(iii) May not include requirements for the posting of a penalty bond.
(g) Nothing in this regulation is meant to preclude the parties from pursuing any non-contractual remedies to the extent permitted by law, or from pursuing the enforcement remedy provided in section 325(e) of Title III.
(h) The health professional receiving the trade secret information may disclose it to EPA only under the following circumstances: The health professional must believe that such disclosure is necessary in order to learn from the Agency additional information about the chemical necessary to assist him in carrying out the responsibilities set forth in paragraphs (c), (d), and (e) of this section. Such information comprises facts regarding adverse health and environmental effects.
Sections 302, 303, 304, 325, 327, 328, and 329 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) (42 U.S.C. 11002, 11003, 11004, 11045, 11047, 11048, and 11049).
(a) This part (40 CFR part 355) establishes requirements for a facility to provide information necessary for developing and implementing State and local chemical emergency response plans, and requirements for emergency notification of chemical releases. This part also lists Extremely Hazardous
(b) This part is written in a special format to make it easier to understand the regulatory requirements. Like other Environmental Protection Agency (EPA) regulations, this part establishes enforceable legal requirements. Information considered non-binding guidance under EPCRA is indicated in this regulation by the word “note” and a smaller typeface. Such notes are provided for information purposes only and are not considered legally binding under this part.
Throughout this part, “you,” “I,” and “your” refer to the owner or operator of a facility.
The definitions of key words used in this part are in § 355.61. It is important to read the definitions for these key words because the definition explains the word's specific meaning associated with the regulations in this part.
You must comply with the emergency planning requirements in this subpart if your facility meets either of the following two conditions:
(a) Any extremely hazardous substance (EHS) is present at your facility in an amount equal to or greater than its threshold planning quantity (TPQ), or
(b) Your facility has been designated for emergency planning purposes, after public notice and opportunity for comment, by one of the following three entities:
(1) The State Emergency Response Commission (SERC).
(2) The Governor of the State in which your facility is located.
(3) The Chief Executive Officer of the Tribe for the Indian Tribe under whose jurisdiction your facility is located.
The emergency planning requirements of this subpart apply to any EHS listed in Appendices A and B of this part. Additionally, if a facility is designated for emergency planning purposes, as provided in § 355.10(b), substances that are not EHSs at this facility may become subject to the emergency planning requirements.
Any EHS present at your facility in an amount equal to or greater than its TPQ triggers the emergency planning requirements of this subpart. The TPQs are listed in Appendices A and B of this part in the column labeled “threshold planning quantity.”
If an EHS is present in a mixture in a particular container, determine the quantity (in pounds) of the EHS in that container by multiplying the concentration of the EHS (in weight percent) by the weight (in pounds) of the mixture in the container. If the concentration of an EHS is less than or equal to one percent in the mixture, you do not have to count that EHS. Here is an example calculation:
You have 150 pounds of a mixture that contains 20 weight percent of a certain EHS. The quantity of EHS present in the mixture is:
= (weight percent of EHS) × (weight of mixture)
= (20 percent) × (150 pound mixture)
= (0.20) × (150)
= 30 pounds
You must aggregate (
EHSs that are in solid form are subject to one of two different TPQs (for example, TPQs may be listed as 500/10,000 pounds), both of which are listed in Appendices A and B of this part. Here is how to determine which of the two listed TPQs you must use for an EHS present at your facility in solid form:
(a) Use the lower TPQ from Appendices A and B of this part if the solid:
(1) Is in powdered form and has a particle size less than 100 microns;
(2) Is in solution;
(3) Is in molten form; or
(4) Meets the criteria for a National Fire Protection Association (NFPA) rating of 2, 3 or 4 for reactivity.
Note to paragraph (a): Use the instructions in § 355.16 to calculate the quantity present for the categories of solids listed in paragraphs (a)(1), (2) and (3) of this section.
(b) If the solid does not meet one of the criteria in paragraph (a) of this section, then the TPQ is 10,000 pounds.
For the three forms of solids that are listed in § 355.15(a)(1) through (3), use these instructions to determine the quantity of extremely hazardous substance present:
(a)
(b)
(c)
Use this table to determine the information you must provide, who to provide it to, and when:
EPA does not require any specific format. EPA recommends that you submit the information described in § 355.20 in writing in order to insure appropriate documentation. The SERC or LEPC may request that this information be submitted in a specific format.
You must comply with the emergency release notification requirements in this subpart if both of these two conditions are met:
(a) You produce, use, or store a hazardous chemical at your facility; and
(b) You release a reportable quantity (RQ) of any EHS or of a hazardous substance as defined by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA Hazardous Substance) at your facility. Certain releases are exempted from these requirements. Exempted releases are listed in § 355.31.
Note to paragraph (b): In addition to the emergency release notification requirements of this subpart, releases of CERCLA hazardous substances are subject to the notification requirements under CERCLA. This is explained further in subpart D of this part.
You do not have to provide emergency release notification under this subpart for any of the following six types of releases of EHSs or CERCLA hazardous substances that occur at your facility:
(a) Any release that results in exposure to persons solely within the boundaries of your facility.
(b) Any release that is a federally permitted release as defined in section 101(10) of CERCLA.
(c) Any release of a pesticide product that is exempt from reporting under section 103(e) of CERCLA.
(d) Any release that does not meet the definition of release under section 101(22) of CERCLA and is therefore exempt from CERCLA section 103(a) reporting.
(e) Any radionuclide release that occurs:
(1) Naturally in soil from land holdings such as parks, golf courses, or other large tracts of land.
(2) Naturally from land disturbance activities, including farming, construction, and land disturbance incidental to extraction during mining activities, except that which occurs at uranium,
(3) From the dumping and transportation of coal and coal ash (including fly ash, bottom ash, and boiler slags), including the dumping and land spreading operations that occur during coal ash uses.
(4) From piles of coal and coal ash, including fly ash, bottom ash, and boiler slags.
(f) Any release less than 1,000 pounds per 24 hours of nitrogen oxide or nitrogen dioxide to the air which is the result of combustion and combustion related activities.
(g) Any release to the air of a hazardous substance from animal waste at farms that stable or confine fewer than the numbers of animal specified in any of the following categories.
(1) 700 mature dairy cows, whether milked or dry.
(2) 1,000 veal calves.
(3) 1,000 cattle other than mature dairy cows or veal calves. Cattle includes but is not limited to heifers, steers, bulls and cow/calf pairs.
(4) 2,500 swine each weighing 55 pounds or more.
(5) 10,000 swine each weighing less than 55 pounds.
(6) 500 horses.
(7) 10,000 sheep or lambs.
(8) 55,000 turkeys.
(9) 30,000 laying hens or broilers, if the farm uses a liquid manure handling system.
(10) 125,000 chickens (other than laying hens), if the farm uses other than liquid manure handling system.
(11) 82,000 laying hens, if the farm uses other than a liquid manure handling system.
(12) 30,000 ducks (if the farm uses other than a liquid manure handling system).
(13) 5,000 ducks (if the farm uses a liquid manure handling system).
(h) Any release to the air of a hazardous substance from animal waste at farms from animals that are not stabled or otherwise confined.
If the release of an EHS or CERCLA hazardous substance is continuous and stable in quantity and rate at your facility as defined in 40 CFR 302.8(b), then the release qualifies for reduced reporting requirements under this subpart. Under these reduced reporting requirements, you do not need to provide the notifications required under § 355.40. However, in addition to the notifications required under 40 CFR 302.8, you must make all of the following notifications to the community emergency coordinator for the LEPC for any area likely to be affected by the release and to the SERC of any State likely to be affected by the release:
(a) Initial notifications as specified in 40 CFR 302.8 (d) and (e).
(b) Notification of a “statistically significant increase,” defined in 40 CFR 302.8(b) as any increase above the upper bound of the reported normal range.
(c) Notification of a “new release” as specified in 40 CFR 302.8(g)(1).
(d) Notification of a change in the normal range of the release as specified under 40 CFR 302.8(g)(2).
The release of a reportable quantity (RQ) of an EHS or CERCLA hazardous substance within any 24-hour period triggers the emergency release notification requirements. RQs for EHSs are listed in Appendices A and B of this part in the column labeled “reportable quantity.” RQs for CERCLA hazardous substances are listed in Table 302.4 of 40 CFR 302.4 in the column labeled “final RQ.”
You must make two separate notifications to comply with the emergency release notification requirements of this subpart: an immediate notification, and as soon as practicable thereafter a written follow-up emergency notification (or notifications, as more information becomes available).
(a)
(1) The chemical name or identity of any substance involved in the release.
(2) Indicate whether the substance is an EHS.
(3) Provide an estimate of the quantity of any such substance that was released into the environment.
(4) State the time and duration of the release.
(5) The medium or media into which the release occurred.
(6) Any known or anticipated acute or chronic health risks associated with the emergency and, where appropriate, advice regarding medical attention necessary for exposed individuals.
(7) Proper precautions to take as a result of the release, including evacuation (unless such information is readily available to the community emergency coordinator pursuant to the emergency plan).
(8) The name and telephone number of the individual (or individuals) to be contacted for further information.
(b)
(1) Actions taken to respond and contain the release.
(2) Any known or anticipated acute or chronic health risks associated with the release.
(3) Where appropriate, advice regarding medical attention necessary for exposed individuals.
(c) You are not required to submit a written follow-up notification for a release that occurred during transportation or from storage incident to transportation. See § 355.42(b) for requirements for reporting such releases.
The immediate notification, described in § 355.40(a), should be oral. The follow-up emergency notification, described in § 355.40(b), shall be in writing. EPA does not specify a particular format for the written follow-up emergency notification.
Note: The LEPC may request a specific format for this information.
(a) You must provide the immediate emergency release notification information and the written follow-up notification to:
(1) The community emergency coordinator for the LEPC of any area likely to be affected by the release (if there is no LEPC, notify the relevant local emergency response personnel); and
(2) The SERC of any State likely to be affected by the release.
(b) For a release that occurs during transportation or from storage incident to transportation, you may meet the requirements of this subpart by notifying the 911 operator (or in the absence of a 911 emergency telephone number, the operator) of the immediate notification information listed in § 355.40(a). You are not required under this subpart to submit a written follow-up notification, as described in § 355.40(b), for such a release.
(a) You must provide the required emergency release notification information described under § 355.40(a), immediately.
(b) You must provide the written follow-up emergency notice (or notices, as
The emergency release notification requirements of this part are in addition to the release notification requirements of CERCLA. If you have a release of a CERCLA hazardous substance, you must comply with the emergency release notification requirements of this part and the release notification requirements of CERCLA section 103, codified at 40 CFR part 302. Use this table to determine which emergency release notification requirements apply to your release:
(1) Any food, food additive, color additive, drug, or cosmetic regulated by the Food and Drug Administration.
(2) Any substance present as a solid in any manufactured item to the extent exposure to the substance does not occur under normal conditions of use.
(3) Any substance to the extent it is used:
(i) For personal, family, or household purposes, or is present in the same form and concentration as a product packaged for distribution and use by the general public. Present in the same form and concentration as a product packaged for distribution and use by the general public means a substance packaged in a similar manner and present in the same concentration as the substance when packaged for use by the general public, whether or not it is intended for distribution to the general public or used for the same purpose as when it is packaged for use by the general public;
(ii) In a research laboratory or hospital or other medical facility under the direct supervision of a technically qualified individual; or
(iii) In routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer.
(1) All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation;
(2) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State; and
(3) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
Sections 302, 311, 312, 322, 324, 325, 327, 328, and 329 of the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA) (Pub. L. 99-499, 100 Stat. 1613, 42 U.S.C. 11002, 11021, 11022, 11042, 11044, 11045, 11047, 11048, and 11049).
(a) This part (40 CFR part 370) establishes reporting requirements for providing the public with important information on the hazardous chemicals in their communities. Reporting raises community awareness of chemical hazards and aids in the development of State and local emergency response plans. The reporting requirements established under this part consist of Material Safety Data Sheet (MSDS) reporting and inventory reporting.
(b) This part is written in a special format to make it easier to understand the regulatory requirements. Like other Environmental Protection Agency (EPA) regulations, this part establishes enforceable legal requirements. Information considered non-binding
Throughout this part, “you,” “I,” and “your” refer to the owner or operator of a facility.
The definitions of key words used in this part are in § 370.66. It is important to read the definitions for key words because the definition explains the word's specific meaning in the regulations in this part.
(a) You must comply with the reporting requirements of this part if the Occupational Safety and Health Administration's (OSHA) Hazard Communication Standard (HCS) require your facility to prepare or have available a Material Safety Data Sheet (MSDS) for a hazardous chemical and if either of the following conditions is met:
(1) A hazardous chemical that is an Extremely Hazardous Substance (EHS) is present at your facility at any one time in an amount equal to or greater than 500 pounds (227 kg—approximately 55 gallons) or the Threshold Planning Quantity (TPQ), whichever is lower. EHSs and their TPQs are listed in Appendices A and B of 40 CFR part 355.
(2) A hazardous chemical that is not an EHS is present at your facility at any one time in an amount equal to or greater than the threshold level for that hazardous chemical. Threshold levels for such hazardous chemicals are:
(i) For any hazardous chemical that does not meet the criteria in paragraph (a)(2)(ii) or (iii) of this section, the threshold level is 10,000 pounds (or 4,540 kg).
(ii) For gasoline at a retail gas station (For purposes of this part, retail gas station means a retail facility engaged in selling gasoline and/or diesel fuel principally to the public, for motor vehicle use on land.), the threshold level is 75,000 gallons (approximately 283,900 liters) (all grades combined). This threshold is only applicable for gasoline that was in tank(s) entirely underground and was in compliance at all times during the preceding calendar year with all applicable Underground Storage Tank (UST) requirements at 40 CFR part 280 or requirements of the state UST program approved by the Agency under 40 CFR part 281.
(iii) For diesel fuel at a retail gas station (For purposes of this part, retail gas station means a retail facility engaged in selling gasoline and/or diesel fuel principally to the public, for motor vehicle use on land.), the threshold level is 100,000 gallons (approximately 378,500 liters) (all grades combined). This threshold is only applicable for diesel fuel that was in tank(s) entirely underground and was in compliance at all times during the preceding calendar year with all applicable Underground Storage Tank (UST) requirements at 40 CFR part 280 or requirements of the state UST program approved by the Agency under 40 CFR part 281.
(b) The threshold level for responding to the following requests is zero.
(1) If your LEPC requests that you submit an MSDS for a hazardous chemical for which you have not submitted an MSDS to your LEPC; or
(2) If your LEPC, SERC, or the fire department with jurisdiction over your facility requests that you submit Tier II information.
(a) You must report any hazardous chemical for which you are required to prepare or have available an MSDS under OSHA HCS that is present at your facility equal to or above the applicable threshold specified in § 370.10. (Specific exemptions from reporting are in § 370.13.)
(b) The EPA has not issued a list of hazardous chemicals subject to reporting under this part. A substance is a hazardous chemical if it is required to have an MSDS and meets the definition of hazardous chemical under the OSHA regulations found at 29 CFR 1910.1200(c).
You do not have to report substances for which you are not required to have an MSDS under the OSHA regulations, or that are excluded from the definition of hazardous chemical under EPCRA section 311(e). Each of the following substances are excluded under EPCRA section 311(e):
(a) Any food, food additive, color additive, drug, or cosmetic regulated by the Food and Drug Administration.
(b) Any substance present as a solid in any manufactured item to the extent exposure to the substance does not occur under normal conditions of use.
(c) Any substance to the extent it is used:
(1) For personal, family, or household purposes, or is present in the same form and concentration as a product packaged for distribution and use by the general public. Present in the same form and concentration as a product packaged for distribution and use by the general public means a substance packaged in a similar manner and present in the same concentration as the substance when packaged for use by the general public, whether or not it is intended for distribution to the general public or used for the same purpose as when it is packaged for use by the general public;
(2) In a research laboratory or hospital or other medical facility under the direct supervision of a technically qualified individual; or
(3) In routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer.
(a) For a mixture containing a hazardous chemical, use the following table to determine if a reporting threshold is equaled or exceeded, and to determine how to report:
(b) For each specific mixture, the reporting option used must be consistent for both MSDS and inventory reporting, unless it is not possible to do so. This means that if you report on a specific mixture as a whole for MSDS reporting, you must report on that mixture as a whole for inventory reporting too (unless it is not possible). MSDS reporting and inventory reporting are discussed in detail in subpart C of this part.
(c) To determine the quantity of an EHS or a non-EHS hazardous chemical component present in a mixture, multiply the concentration of the hazardous chemical component (in weight percent) by the weight of the mixture (in pounds). You do not have to count a hazardous chemical present in a mixture if the concentration is less than or equal to 1%, or less than or equal to 0.1% for a carcinogenic chemical.
The reporting requirements of this part consist of MSDS reporting and inventory reporting. If you are the owner or operator of a facility subject to the reporting requirements of this part then you must comply with both types of reporting requirements. MSDS reporting requirements are addressed in §§ 370.30 through 370.33. Inventory reporting requirements are addressed in §§ 370.40 through 370.45.
(a) You must report the hazardous chemicals present at your facility that meet or exceed the applicable threshold levels (threshold levels are in § 1A370.10) by either:
(1) Submitting an MSDS for each hazardous chemical present at your facility that meet or exceed its applicable threshold level; or
(2) Submitting a list of all hazardous chemicals present at your facility at or above the applicable threshold levels. The hazardous chemicals on your list must be grouped by Hazard Category as defined under § 370.66. The list must contain the chemical or common name of each hazardous chemical as provided on the MSDS.
(b) Within 30 days of a request by the LEPC (as provided in § 370.10(b)), you must also submit an MSDS for any hazardous chemical present at your facility for which you have not submitted an MSDS.
MSDS reporting stated in § 370.30 is a one-time requirement. However, you must update the information in all of the following ways:
(a) Submit a revised MSDS after you discover significant new information concerning a hazardous chemical for which an MSDS was submitted.
(b) Submit an MSDS, or a list as described in § 370.30(a), for any new hazardous chemical for which you become subject to these reporting requirements.
(c) Submit, as requested by the LEPC, an MSDS for any hazardous chemical present at your facility which you have not already submitted, as provided in § 370.30(b).
(a) You must submit an MSDS or list, as provided in § 370.30(a), to the LEPC, the SERC, and the fire department with jurisdiction over your facility.
(b) You must submit an MSDS requested by the LEPC, as provided in § 370.30(b), to the LEPC.
(a) You must submit an MSDS or a list, as provided in § 370.30(a), for a hazardous chemical subject to the reporting requirements of this part by October 17, 1987, or within 3 months after you first become subject to the reporting requirements of this part (as provided in §§ 370.30 and 370.31(b)).
(b) You must submit a revised MSDS, as provided in § 370.31(a), within 3 months after discovering significant new information about a hazardous chemical for which an MSDS was submitted.
(c) You must submit an MSDS requested by the LEPC, as provided in §§ 370.30(b) and 370.31(c), within 30 days of receiving the request.
(a) If you are required to comply with the hazardous chemical reporting requirements of this part, then by March 1 every year you must submit inventory information regarding any hazardous chemical present at your facility at any time during the previous calendar year in an amount equal to or in excess of its threshold level. Threshold levels are provided in § 370.10.
(b) Tier I information is the minimum information that you must report to be in compliance with the inventory reporting requirements of this part as described in § 370.41. You may choose to report the Tier II information described in § 370.42 for any hazardous chemical at your facility. You must submit Tier II information to the SERC, LEPC, or fire department having jurisdiction over your facility if they request it. EPA publishes Tier I and Tier II Inventory Forms that provide uniform formats for reporting the Tier I and Tier II information. You may use a State or local format for reporting inventory information if the State or local format contains at least the Tier I information described in § 370.41. EPA's Tier I and Tier II forms are available at
Note to paragraph (b):
Some States require Tier II information annually under State law.
(c) You should contact the SERC to determine that State's requirements for inventory reporting formats, procedures, and to obtain inventory forms.
Tier I information provides State and local officials and the public with information on the general types and locations of hazardous chemicals present at your facility during the previous calendar year. The Tier I information is the minimum information that you must provide to be in compliance with the inventory reporting requirements of this part. If you are reporting Tier I information, you must report aggregate information on hazardous chemicals by hazard categories. There are two health hazard categories and three physical hazard categories for purposes of reporting under this part. These five hazard categories are defined in 40 CFR 370.66. Tier I information includes all of the following:
(a) Certification. The owner or operator or the officially designated representative of the owner or operator must certify that all information included in the Tier I submission is true, accurate, and complete as follows: “I certify under penalty of law that I have personally examined and am familiar with the information and that based on my inquiry of those individuals responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete.” This certification shall be accompanied by your full name, official title, signature, date signed, and total number of pages in the submission including all attachments. All other pages must also contain your signature or signature stamp, the date you signed the certification, and the total number of pages in the submission.
(b) The calendar year for the reporting period.
(c) The complete name (and company identifier where appropriate) and address of your facility. Include the full street address or state road, the city, county, State and zip code.
(d) The North American Industry Classification System (NAICS) code for your facility.
(e) The Dun & Bradstreet number of your facility.
(f) The owner's or operator's full name, mailing address, and phone number.
(g) Emergency contact. The name, title, and phone number(s) of at least one local individual or office that can act as a referral if emergency responders need assistance in responding to a chemical accident at your facility. You must provide an emergency phone number where such emergency information will be available 24 hours a day, every day.
(h) An indication whether the information being reported is identical to that submitted the previous year.
(i) An estimate (in ranges) of the maximum amount of hazardous chemicals in each hazard category present at your facility at any time during the preceding calendar year. You must use codes that correspond to different ranges. The range codes are in § 370.43.
(j) An estimate (in ranges) of the average daily amount of hazardous chemicals in each hazard category present at your facility during the preceding calendar year. You must use codes that correspond to different ranges. The range codes are in § 370.43.
(k) The maximum number of days that any single hazardous chemical within each hazard category was present at your facility during the reporting period.
(l) The general location of hazardous chemicals in each hazard category within your facility. For each hazard type, list the locations of all applicable chemicals. As an alternative, you may choose to submit a site plan and list the site coordinates to indicate the locations of the chemicals.
Tier II information provides State and local officials and the public with specific information on amounts and locations of hazardous chemicals present at your facility during the previous calendar year. If you are reporting Tier II information, you must include:
(a) Certification. The owner or operator or the officially designated representative of the owner or operator must certify that all information included in the Tier II submission is true, accurate, and complete as follows: “I certify under penalty of law that I have personally examined and am familiar with the information and that based on my inquiry of those individuals responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete.” This certification must be accompanied by your full name, official title, original signature, date signed, and total number of pages in the submission including all Confidential and Non-Confidential Information Sheets and all attachments. All other pages must also contain your signature or signature stamp, the date you signed the certification, and the total number of pages in the submission.
(b) The calendar year for the reporting period.
(c) The complete name (and company identifier where appropriate) and address of your facility. Include the full street address or state road, the city, county, State and zip code.
(d) The North American Industry Classification System (NAICS) code for your facility.
(e) The Dun & Bradstreet number of your facility.
(f) The owner's or operator's full name, mailing address, and phone number.
(g) Emergency contact. The name, title, and phone number(s) of at least one local individual or office that can act as a referral if emergency responders need assistance in responding to a chemical accident at your facility. You must provide an emergency phone number where such emergency information will be available 24 hours a day, every day.
(h) An indication whether the information being reported is identical to that submitted the previous year.
(i) For each hazardous chemical that you are required to report, you must:
(1) Provide the chemical name or the common name of the chemical as provided on the Material Safety Data Sheet and its Chemical Abstract Service (CAS) registry number. If you are withholding the name in accordance with trade secret criteria, you must provide the generic class or category that is structurally descriptive of the chemical and indicate that the name is withheld because of trade secrecy. Trade secret criteria are addressed in § 370.64(a).
(2) Indicate whether the chemical is: pure or mixture; solid, liquid, or gas; and whether the chemical is or contains an EHS.
(3) If the chemical is a mixture containing an EHS, provide the chemical name of each EHS in the mixture.
(4) Indicate which hazard categories apply to the chemical. The five hazard categories are defined in § 370.66.
(5) Provide an estimate (in ranges) of the maximum amount of the hazardous chemical present at your facility on any single day during the preceding calendar year. You must use codes that correspond to different ranges. The range codes are in § 370.43.
(6) Provide an estimate (in ranges) of the average daily amount of the hazardous chemical present at your facility during the preceding calendar year. You must use codes that correspond to different ranges. The range codes are in § 370.43.
(7) The maximum number of days that the hazardous chemical was present at your facility during the preceding calendar year.
(8)(i) Provide a brief description of the precise location of the hazardous chemical at your facility. You may also attach one of the following with your Tier II inventory form.
(A)
(B)
(C)
(ii) Under EPCRA section 324, you may choose to withhold from disclosure to the public the location information for a specific chemical. If you choose to withhold the location information from disclosure to the public, you must clearly indicate that the information is “confidential.” You must provide the confidential location information on a separate sheet from the other Tier II information (which will be disclosed to the public), and attach the Confidential Location Information Sheet to the other Tier II information. Indicate any attachments you are including.
(9) Provide a brief description of the manner of storage of the hazardous chemical, including container type, temperature and pressure for each location listed. You must use codes that correspond to different storage types and temperature and pressure conditions. The storage codes are in § 370.43. If the specific location for which you are reporting storage conditions is a “confidential” location, then you must report the storage conditions on a separate Confidential Location Information Sheet.
(a)
(b)
(c)
(d) Your SERC or LEPC may provide other range codes for reporting maximum amounts and average daily amounts, or may require reporting of specific amounts. You may use your SERC's or LEPC's range codes (or specific amounts) provided the ranges are not broader than the ranges in paragraph (a) of this section. Your SERC or LEPC may also provide other codes for storage types or conditions. You may use those codes provided your SERC's or LEPC's storage types and conditions codes specify the same or more detailed information as the codes in paragraphs (b) and (c) of this section.
You must submit the required inventory information to your SERC, LEPC, and fire department with jurisdiction over your facility.
(a) You must submit the required inventory information on or before March 1 (beginning in 1988 or beginning after your facility first becomes subject to this part), and on or before by March 1 of each year afterwards. Your submission must contain the required inventory information on hazardous chemicals present at your facility during the preceding calendar year at or above the threshold levels. Threshold levels are in § 370.10. The minimum required inventory information under EPCRA section 312 is Tier I information. Tier I information requirements are described in § 370.41.
(b) You must submit Tier II information within 30 days of the receipt of a request from the SERC, LEPC, or the fire department having jurisdiction over your facility, as provided in § 370.10(b). Tier II information requirements are described in § 370.42.
Any person may obtain an MSDS for a specific facility by writing to the LEPC and asking for it.
(a) If the LEPC has the MSDS, it must provide it to the person making the request.
(b) If the LEPC does not have the MSDS, it must request the MSDS from the facility's owner or operator.
(a) Any person may request Tier II information for a specific facility by writing to the SERC or the LEPC and asking for such information.
(1) If the SERC or LEPC has the Tier II information, the SERC or LEPC must provide it to the person making the request.
(2) If the SERC or LEPC does not have the Tier II information, it must request it from the facility owner or operator in either of the following cases:
(i) The person making the request is a State or local official acting in his or her official capacity.
(ii) The request is for hazardous chemicals in amounts greater than 10,000 pounds stored at the facility at
(3) If the SERC or LEPC does not have the Tier II information, it may request it from the facility owner or operator when neither condition in paragraph (a)(2) of this section is met, but the person's request includes a general statement of need.
(b) A SERC or LEPC must respond to a request for Tier II information under this section within 45 days of receiving such a request.
The LEPC may ask a facility owner or operator to submit an MSDS for a hazardous chemical present at the facility. The SERC, LEPC, or fire department having jurisdiction over a facility may ask a facility owner or operator to submit Tier II information. The owner or operator must provide the MSDS (unless the owner or operator has already submitted an MSDS to the LEPC for that hazardous chemical) or Tier II information within 30 days of receipt of such request.
Under this subpart, the SERC or LEPC must make the following information (except for confidential location information discussed in § 370.64(b)) available if a person requests it:
(a) All information obtained from an owner or operator in response to a request under this subpart.
(b) Any requested Tier II information or MSDS otherwise in possession of the SERC or the LEPC.
(a)
(b)
If you are the owner or operator of a facility that has submitted inventory information under this part, you must comply with the following two requirements upon request by the fire department with jurisdiction over your facility:
(a) You must allow the fire department to conduct an on-site inspection of your facility; and
(b) You must provide the fire department with information about the specific locations of hazardous chemicals at your facility.
(1) Immediate (acute) health hazard, including highly toxic, toxic, irritant, sensitizer, corrosive, (as defined under 29 CFR 1910.1200) and other hazardous chemicals that cause an adverse effect to a target organ and which effect usually occurs rapidly as a result of short-term exposure and is of short duration;
(2) Delayed (chronic) health hazard, including carcinogens (as defined under 29 CFR 1910.1200) and other hazardous chemicals that cause an adverse effect to a target organ and which effect generally occurs as a result of long-term exposure and is of long duration;
(3) Fire hazard, including flammable, combustible liquid, pyrophoric, and oxidizer (as defined under 29 CFR 1910.1200);
(4) Sudden release of pressure, including explosive and compressed gas (as defined under 29 CFR 1910.1200); and
(5) Reactive, including unstable reactive, organic peroxide, and water reactive (as defined under 29 CFR 1910.1200).
(1) Any food, food additive, color additive, drug, or cosmetic regulated by the Food and Drug Administration.
(2) Any substance present as a solid in any manufactured item to the extent exposure to the substance does not occur under normal conditions of use.
(3) Any substance to the extent it is used:
(i) For personal, family, or household purposes, or is present in the same form and concentration as a product packaged for distribution and use by the general public. Present in the same form and concentration as a product packaged for distribution and use by the general public means a substance packaged in a similar manner and present in the same concentration as the substance when packaged for use by the general public, whether or not it is intended for distribution to the general public or used for the same purpose as when it is packaged for use by the general public;
(ii) In a research laboratory or a hospital or other medical facility under the direct supervision of a technically qualified individual; or
(iii) In routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer.
(1) All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation;
(2) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State; and
(3) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
42 U.S.C. 11023 and 11048.
This part sets forth requirements for the submission of information relating to the release of toxic chemicals under section 313 of Title III of the Superfund Amendments and Reauthorization Act of 1986. The information collected under this part is intended to inform the general public and the communities surrounding covered facilities about releases of toxic chemicals, to assist research, to aid in the development of regulations, guidelines, and
Terms defined in sections 313(b)(1)(c) and 329 of Title III and not explicitly defined herein are used with the meaning given in Title III. For the purpose of this part:
(1)(i) The unit must have physical provisions for recovering and exporting thermal energy in the form of steam, heated fluids, or heated gases; and
(ii) The unit's combustion chamber and primary energy recovery sections(s) must be of integral design. To be of integral design, the combustion chamber and the primary energy recovery section(s) (such as waterwalls and superheaters) must be physically formed into one manufactured or assembled unit. A unit in which the combustion chamber and the primary energy recovery section(s) are joined only by ducts or connections carrying flue gas is not integrally designed; however, secondary energy recovery equipment (such as economizers or air preheaters) need not be physically formed into the same unit as the combustion chamber and the primary energy recovery section. The following units are not precluded from being boilers solely because they are not of integral design: process heaters (units that transfer energy directly to a process stream), and fluidized bed combustion units; and
(iii) While in operation, the unit must maintain a thermal energy recovery efficiency of at least 60 percent, calculated in terms of the recovered energy compared with the thermal value of the fuel; and
(iv) The unit must export and utilize at least 75 percent of the recovered energy, calculated on an annual basis. In this calculation, no credit shall be given for recovered heat used internally in the same unit. (Examples of internal use are the preheating of fuel or combustion air, and the driving of induced or forced draft fans or feedwater pumps); or
(2) The unit is one which the Regional Administrator has determined, on a case-by-case basis, to be a boiler, after considering the standards in § 260.32 of this chapter.
(a) All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation;
(b) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State; and
(c) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
(1) Cement kilns.
(2) Lime kilns.
(3) Aggregate kilns.
(4) Phosphate kilns.
(5) Coke ovens.
(6) Blast furnaces.
(7) Smelting, melting and refining furnaces (including pyrometallurgical devices such as cupolas, reverberator furnaces, sintering machine, roasters, and foundry furnaces).
(8) Titanium dioxide chloride process oxidation reactors.
(9) Methane reforming furnaces.
(10) Pulping liquor recovery furnaces.
(11) Combustion devices used in the recovery of sulfur values from spent sulfuric acid.
(12) Halogen acid furnaces (HAFs) for the production of acid from halogenated hazardous waste generated by chemical production facilities where the furnace is located on the site of a chemical production facility, the acid product has a halogen acid content of at least 3%, the acid product is used in a manufacturing process, and, except for hazardous waste burned as fuel, hazardous waste fed to the furnace has a minimum halogen content of 20% as-generated.
(13) Such other devices as the Administrator may, after notice and comment, add to this list on the basis of one or more of the following factors:
(i) The design and use of the device primarily to accomplish recovery of material products;
(ii) The use of the device to burn or reduce raw materials to make a material product;
(iii) The use of the device to burn or reduce secondary materials as effective substitutes for raw materials, in processes using raw materials as principal feedstocks;
(iv) The use of the device to burn or reduce secondary materials as ingredients in an industrial process to make a material product;
(v) The use of the device in common industrial practice to produce a material product; and
(vi) Other factors, as appropriate.
(1) The toxic chemical that was disposed, stabilized, or treated for destruction was received from off-site for the purposes of futher waste management; or
(2) The toxic chemical that was disposed, stabilized, or treated for destruction was manufactured as a result of waste management activities on materials received from off-site for the purposes of further waste management activities. Relabeling or redistributing of the toxic chemical where no repackaging of the toxic chemical occurs does not constitute otherwise use or processing of the toxic chemical.
(1) In the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such substance, or
(2) As part of an article containing the toxic chemical. Process also applies to the processing of a toxic chemical contained in a mixture or trade name product.
Owners and operators of facilities described in §§ 372.22 and 372.45 are subject to the requirements of this part. If the owner and operator of a facility are different persons, only one need report under § 372.30 or provide a notice under § 372.45 for each toxic chemical in a mixture or trade name product distributed from the facility. However, if no report is submitted or notice provided, EPA will hold both the owner and the operator liable under section 325(c) of Title III, except as provided in §§ 372.38(e) and 372.45(g).
(a) Each person subject to the reporting requirements of this part must retain the following records for a period of 3 years from the date of the submission of a report under § 372.30:
(1) A copy of each report submitted by the person under § 372.30.
(2) All supporting materials and documentation used by the person to make the compliance determination that the facility or establishments is a covered facility under § 372.22 or § 372.45.
(3) Documentation supporting the report submitted under § 372.30 including:
(i) Documentation supporting any determination that a claimed allowable exemption under § 372.38 applies.
(ii) Data supporting the determination of whether a threshold under § 372.25 applies for each toxic chemical.
(iii) Documentation supporting the calculations of the quantity of each toxic chemical released to the environment or transferred to an off-site location.
(iv) Documentation supporting the use indications and quantity on site reporting for each toxic chemical, including dates of manufacturing, processing, or use.
(v) Documentation supporting the basis of estimate used in developing any release or off-site transfer estimates for each toxic chemical.
(vi) Receipts or manifests associated with the transfer of each toxic chemical in waste to off-site locations.
(vii) Documentation supporting reported waste treatment methods, estimates of treatment efficiencies, ranges of influent concentration to such treatment, the sequential nature of treatment steps, if applicable, and the actual operating data, if applicable, to support the waste treatment efficiency estimate for each toxic chemical.
(b) Each person subject to the notification requirements of this part must retain the following records for a period of 3 years from the date of the submission of a notification under § 372.45.
(1) All supporting materials and documentation used by the person to determine whether a notice is required under § 372.45.
(2) All supporting materials and documentation used in developing each required notice under § 372.45 and a copy of each notice.
(c) Records retained under this section must be maintained at the facility to which the report applies or from which a notification was provided. Such records must be readily available for purposes of inspection by EPA.
(d) Each owner or operator who determines that the owner operator may apply the alternate threshold as specified under § 372.27(a) must retain the following records for a period of 3 years from the date of the submission of the certification statement as required under § 372.27(b):
(1) A copy of each certification statement submitted by the person under § 372.27(b).
(2) All supporting materials and documentation used by the person to make the compliance determination that the facility or establishment is eligible to apply the alternate threshold as specified in § 372.27.
(3) Documentation supporting the certification statement submitted under § 372.27(b) including:
(i) Data supporting the determination of whether the alternate threshold specified under § 372.27(a) applies for each toxic chemical.
(ii) Documentation supporting the calculation of annual reportable amount, as defined in § 372.27(a), for each toxic chemical, including documentation supporting the calculations and the calculations of each data element combined for the annual reportable amount.
(iii) Receipts or manifests associated with the transfer of each chemical in waste to off-site locations.
Violators of the requirements of this part shall be liable for a civil penalty in an amount not to exceed $25,000 each day for each violation as provided in section 325(c) of Title III.
A facility that meets all of the following criteria for a calendar year is a covered facility for that calendar year and must report under § 372.30.
(a) The facility has 10 or more full-time employees.
(b) The facility is in a Standard Industrial Classification (SIC) (as in effect on January 1, 1987) major group or industry code listed in § 372.23(a), for which the corresponding North American Industry Classification System (NAICS) (as in effect on January 1, 2007, for reporting year 2008 and thereafter) subsector and industry codes are listed in § 372.23(b) and (c) by virtue of the fact that it meets one of the following criteria:
(1) The facility is an establishment with a primary SIC major group or industry code listed in § 372.23(a), or a primary NAICS subsector or industry code listed in § 372.23(b) or § 372.23(c).
(2) The facility is a multi-establishment complex where all establishments have primary SIC major group or industry codes listed in § 372.23(a), or primary NAICS subsector or industry codes listed in § 372.23(b) or § 372.23(c).
(3) The facility is a multi-establishment complex in which one of the following is true:
(i) The sum of the value of services provided and/or products shipped and/or produced from those establishments that have primary SIC major group or industry codes listed in § 372.23(a), or primary NAICS subsector or industry codes listed in § 372.23(b) or § 372.23(c) is greater than 50 percent of the total value of all services provided and/or products shipped from and/or produced by all establishments at the facility.
(ii) One establishment having a primary SIC major group or industry code listed in § 372.23(a), or a primary NAICS subsector or industry code listed in § 372.23(b) or § 372.23(c) contributes more in terms of value of services provided and/or products shipped from and/or produced at the facility than any other establishment within the facility.
(c) The facility manufactured (including imported), processed, or otherwise used a toxic chemical in excess of an applicable threshold quantity of that chemical set forth in § 372.25, § 372.27, or § 372.28.
The requirements of this part apply to facilities in the following SIC and NAICS codes. This section contains three listings. Paragraph (a) of this section lists the SIC codes to which this part applies. Paragraph (b) of this section lists the NAICS codes that correspond to SIC codes 20 through 39 to which this part applies. Paragraph (c) of this section lists the NAICS codes that correspond to SIC codes other
(a) SIC codes.
(b) NAICS codes that correspond to SIC codes 20 through 39.
(c) NAICS codes that correspond to SIC codes other than SIC codes 20 through 39.
Except as provided in §§ 372.27 and 372.28, the threshold amounts for purposes of reporting under § 372.30 for toxic chemicals are as follows:
(a) With respect to a toxic chemical manufactured (including imported) or processed at a facility during the following calendar years:
(b) With respect to a chemical otherwise used at a facility, 10,000 pounds of the chemical used for the applicable calendar year.
(c) With respect to activities involving a toxic chemical at a facility, when more than one threshold applies to the activities, the owner or operator of the facility must report if it exceeds any applicable threshold and must report on all activities at the facility involving the chemical, except as provided in § 372.38.
(d) When a facility manufactures, processes, or otherwise uses more than one member of a chemical category listed in § 372.65(c), the owner or operator of the facility must report if it exceeds any applicable threshold for the total volume of all the members of the category involved in the applicable activity. Any such report must cover all activities at the facility involving members of the category.
(e) A facility may process or otherwise use a toxic chemical in a recycle/reuse operation. To determine whether the facility has processed or used more than an applicable threshold of the chemical, the owner or operator of the facility shall count the amount of the chemical added to the recycle/reuse operation during the calendar year. In particular, if the facility starts up such an operation during a calendar year, or in the event that the contents of the whole recycle/reuse operation are replaced in a calendar year, the owner or operator of the facility shall also count
(f) A toxic chemical may be listed in § 372.65 with the notation that only persons who manufacture the chemical, or manufacture it by a certain method, are required to report. In that case, only owners or operators of facilities that manufacture that chemical as described in § 372.65 in excess of the threshold applicable to such manufacture in § 372.25, § 372.27, or § 372.28 are required to report. In completing the reporting form, the owner or operator is only required to account for the quantity of the chemical so manufactured and releases associated with such manufacturing, but not releases associated with subsequent processing or use of the chemical at that facility. Owners and operators of facilities that solely process or use such a chemical are not required to report for that chemical.
(g) A toxic chemical may be listed in § 372.65 with the notation that it is in a specific form (e.g., fume or dust, solution, or friable) or of a specific color (e.g., yellow or white). In that case, only owners or operators of facilities that manufacture, process, or use that chemical in the form or of the color, specified in § 372.65 in excess of the threshold applicable to such activity in § 372.25, § 372.27, or § 372.28 are required to report. In completing the reporting form, the owner or operator is only required to account for the quantity of the chemical manufactured, processed, or used in the form or color specified in § 372.65 and for releases associated with the chemical in that form or color. Owners or operators of facilities that solely manufacture, process, or use such a chemical in a form or color other than those specified by § 372.65 are not required to report for that chemical.
(h) Metal compound categories are listed in § 372.65(c). For purposes of determining whether any of the thresholds specified in § 372.25, § 372.27, or § 372.28 are met for metal compound category, the owner or operator of a facility must make the threshold determination based on the total amount of all members of the metal compound category manufactured, processed, or used at the facility. In completing the release portion of the reporting form for releases of the metal compounds, the owner or operator is only required to account for the weight of the parent metal released. Any contribution to the mass of the release attributable to other portions of each compound in the category is excluded.
(a) Except as provided in paragraph (e) of this section, with respect to the manufacture, process, or otherwise use of a toxic chemical, the owner or operator of a facility may apply an alternate threshold of 1 million pounds per year to that chemical if the owner or operator calculates that the facility would have an annual reportable amount of that toxic chemical not exceeding 500 pounds for the combined total quantities released at the facility, disposed within the facility, treated at the facility (as represented by amounts destroyed or converted by treatment processes), recovered at the facility as a result of recycle operations, combusted for the purpose of energy recovery at the facility, and amounts transferred from the facility to off-site locations for the purpose of recycle, energy recovery, treatment, and/or disposal. These volumes correspond to the sum of amounts reportable for data elements on EPA Form R (EPA Form 9350-1; Rev. 12/4/93) as Part II column B or sections 8.1 (quantity released), 8.2 (quantity used for energy recovery on-site), 8.3 (quantity used for energy recovery off-site), 8.4 (quantity recycled on-site), 8.5 (quantity recycled off-site), 8.6 (quantity treated on-site), and 8.7 (quantity treated off-site).
(b) If an owner or operator of a facility determines that the owner or operator may apply the alternate reporting threshold specified in paragraph (a) of this section for a specific toxic chemical, the owner or operator is not required to submit a report for that chemical under § 372.30, but must submit a certification statement that contains the information required in § 372.95. The owner or operator of the facility must also keep records as specified in § 372.10(d).
(c) Threshold determination provisions of § 372.25 and exemptions pertaining to threshold determinations in § 372.38 are applicable to the determination of whether the alternate threshold has been met.
(d) Each certification statement under this section for activities involving a toxic chemical that occurred during a calendar year at a facility must be submitted to EPA and to the State in which the facility is located on or before July 1 of the next year.
(e) The provisions of this section do not apply to any chemicals listed in § 372.28.
(a) Notwithstanding § 372.25 or § 372.27, for the toxic chemicals set forth in this section, the threshold amounts for manufacturing (including importing), processing, and otherwise using such toxic chemicals are as set forth in this section.
(1) Chemical listing in alphabetic order.
(2) Chemical categories in alphabetic order.
(b) The threshold determination provisions under § 372.25(c) through (h) and the exemptions under § 372.38(b) through (h) are applicable to the toxic chemicals listed in paragraph (a) of this section.
(a) For each toxic chemical known by the owner or operator to be manufactured (including imported), processed, or otherwise used in excess of an applicable threshold quantity in § 372.25, § 372.27, or § 372.28 at its covered facility described in § 372.22 for a calendar year, the owner or operator must submit to EPA and to the State in which the facility is located a completed EPA Form R (EPA Form 9350-1) and, for the dioxin and dioxin-like compounds category, EPA Form R Schedule 1 (EPA Form 9350-3) in accordance with the instructions referred to in subpart E of this part.
(b)(1) The owner or operator of a covered facility is required to report as described in paragraph (a) of this section on a toxic chemical that the owner or operator knows is present as a component of a mixture or trade name product which the owner or operator receives from another person, if that chemical is imported, processed, or otherwise used by the owner or operator in excess of an applicable threshold quantity in § 372.25, § 372.27, or § 372.28 at the facility as part of that mixture or trade name product.
(2) The owner or operator knows that a toxic chemical is present as a component of a mixture or trade name product (i) if the owner or operator knows or has been told the chemical identity or Chemical Abstracts Service Registry Number of the chemical and the identity or Number corresponds to an identity or Number in § 372.65, or (ii) if the owner or operator has been told by the supplier of the mixture or trade name product that the mixture or trade name product contains a toxic chemical subject to section 313 of the Act or this part.
(3) To determine whether a toxic chemical which is a component of a mixture or trade name product has been imported, processed, or otherwise used in excess of an applicable threshold in § 372.25, § 372.27, or § 372.28 at the facility, the owner or operator shall consider only the portion of the mixture or trade name product that consists of the toxic chemical and that is imported, processed, or otherwise used at the facility, together with any other amounts of the same toxic chemical
(i) If the owner or operator knows the specific chemical identity of the toxic chemical and the specific concentration at which it is present in the mixture or trade name product, the owner or operator shall determine the weight of the chemical imported, processed, or otherwise used as part of the mixture or trade name product at the facility and shall combine that with the weight of the toxic chemical manufactured (including imported), processed, or otherwise used at the facility other than as part of the mixture or trade name product. After combining these amounts, if the owner or operator determines that the toxic chemical was manufactured, processed, or otherwise used in excess of an applicable threshold in § 372.25, § 372.27, or § 372.28, the owner or operator shall report the specific chemical identity and all releases of the toxic chemical on EPA Form R in accordance with the instructions referred to in subpart E of this part.
(ii) If the owner or operator knows the specific chemical identity of the toxic chemical and does not know the specific concentration at which the chemical is present in the mixture or trade name product, but has been told the upper bound concentration of the chemical in the mixture or trade name product, the owner or operator shall assume that the toxic chemical is present in the mixture or trade name product at the upper bound concentration, shall determine whether the chemical has been manufactured, processed, or otherwise used at the facility in excess of an applicable threshold as provided in paragraph (b)(3)(i) of this section, and shall report as provided in paragraph (b)(3)(i) of this section.
(iii) If the owner or operator knows the specific chemical identity of the toxic chemical, does not know the specific concentration at which the chemical is present in the mixture or trade name product, has not been told the upper bound concentration of the chemical in the mixture or trade name product, and has not otherwise developed information on the composition of the chemical in the mixture or trade name product, then the owner or operator is not required to factor that chemical in that mixture or trade name product into threshold and release calculations for that chemical.
(iv) If the owner or operator has been told that a mixture or trade name product contains a toxic chemical, does not know the specific chemical identity of the chemical and knows the specific concentration at which it is present in the mixture or trade name product, the owner or operator shall determine the weight of the chemical imported, processed, or otherwise used as part of the mixture or trade name product at the facility. Since the owner or operator does not know the specific identity of the toxic chemical, the owner or operator shall make the threshold determination only for the weight of the toxic chemical in the mixture or trade name product. If the owner or operator determines that the toxic chemical was imported, processed, or otherwise used as part of the mixture or trade name product in excess of an applicable threshold in § 372.25, § 372.27, or § 372.28, the owner or operator shall report the generic chemical name of the toxic chemical, or a trade name if the generic chemical name is not known, and all releases of the toxic chemical on EPA Form R in accordance with the instructions referred to in subpart E of this part.
(v) If the owner or operator has been told that a mixture or trade name product contains a toxic chemical, does not know the specific chemical identity of the chemical, and does not know the specific concentration at which the chemical is present in the mixture or trade name product, but has been told the upper bound concentration of the chemical in the mixture or trade name product, the owner or operator shall assume that the toxic chemical is present in the mixture or trade name product at the upper bound concentration, shall determine whether the chemical has been imported, processed, or otherwise used at the facility in excess of an applicable threshold as provided in paragraph (b)(3)(iv) of this section, and shall report as provided in paragraph (b)(3)(iv) of this section.
(vi) If the owner or operator has been told that a mixture or trade name product contains a toxic chemical, does
(c) A covered facility may consist of more than one establishment. The owner or operator of such a facility at which a toxic chemical was manufactured (including imported), processed, or otherwise used in excess of an applicable threshold may submit a separate Form R for each establishment or for each group of establishments within the facility to report the activities involving the toxic chemical at each establishment or group of establishments, provided that activities involving that toxic chemical at all the establishments within the covered facility are reported. If each establishment or group of establishments files separate reports then for all other chemicals subject to reporting at that facility they must also submit separate reports. However, an establishment or group of establishments does not have to submit a report for a chemical that is not manufactured (including imported), processed, otherwise used, or released at that establishment or group of establishments.
(d) Each report under this section for activities involving a toxic chemical that occurred during a calendar year at a covered facility must be submitted on or before July 1 of the next year. The first such report for calendar year 1987 activities must be submitted on or before July 1, 1988.
(a)
(b)
(c)
(1) Use as a structural component of the facility.
(2) Use of products for routine janitorial or facility grounds maintenance. Examples include use of janitorial cleaning supplies, fertilizers, and pesticides similar in type or concentration to consumer products.
(3) Personal use by employees or other persons at the facility of foods, drugs, cosmetics, or other personal items containing toxic chemicals, including supplies of such products within the facility such as in a facility operated cafeteria, store, or infirmary.
(4) Use of products containing toxic chemicals for the purpose of maintaining motor vehicles operated by the facility.
(5) Use of toxic chemicals present in process water and non-contact cooling water as drawn from the environment or from municipal sources, or toxic chemicals present in air used either as compressed air or as part of combustion.
(d)
(1) Specialty chemical production.
(2) Manufacture, processing, or use of toxic chemicals in pilot plant scale operations.
(3) Activities conducted outside the laboratory.
(e)
(f)
(g)
(h)
(a) Except as provided in paragraphs (c), (d), and (e) of this section and § 372.65, a person who owns or operates a facility or establishment which:
(1) Is in SIC codes 20 through 39 or a NAICS code that corresponds to SIC codes 20 through 39 as set forth in § 372.23(b),
(2) Manufactures (including imports) or processes a toxic chemical, and
(3) Sells or otherwise distributes a mixture or trade name product containing the toxic chemical, to (i) a facility described in § 372.22, or (ii) to a person who in turn may sell or otherwise distributes such mixture or trade name product to a facility described in § 372.22(b), must notify each person to whom the mixture or trade name product is sold or otherwise distributed from the facility or establishment in accordance with paragraph (b) of this section.
(b) The notification required in paragraph (a) of this section shall be in writing and shall include:
(1) A statement that the mixture or trade name product contains a toxic chemical or chemicals subject to the reporting requirements of section 313 of Title III of the Superfund Amendments and Reauthorization Act of 1986 and 40 CFR part 372.
(2) The name of each toxic chemical, and the associated Chemical Abstracts Service registry number of each chemical if applicable, as set forth in § 372.65.
(3) The percent by weight of each toxic chemical in the mixture or trade name product.
(c) Notification under this section shall be provided as follows:
(1) For a mixture or trade name product containing a toxic chemical listed in § 373.65 with an effective date of January 1, 1987, the person shall provide the written notice described in paragraph (b) of this section to each recipient of the mixture or trade name product with at least the first shipment of each mixture or trade name product to each recipient in each calendar year beginning January 1, 1989.
(2) For a mixture or trade name product containing a toxic chemical listed in § 372.65 with an effective date of January 1, 1989 or later, the person shall provide the written notice described in paragraph (b) of this section to each recipient of the mixture or trade name product with at least the first shipment of the mixture or trade name product to each recipient in each calendar year beginning with the applicable effective date.
(3) If a person changes a mixture or trade name product for which notification was previously provided under paragraph (b) of this section by adding a toxic chemical, removing a toxic chemical, or changing the percent by weight of a toxic chemical in the mixture or trade name product, the person shall provide each recipient of the changed mixture or trade name product a revised notification reflecting the change with the first shipment of the changed mixture or trade name product to the recipient.
(4) If a person discovers (i) that a mixture or trade name product previously sold or otherwise distributed to another person during the calendar year of the discovery contains one or more toxic chemicals and (ii), that any notification provided to such other persons in that calendar year for the mixture or trade name product either did not properly identify any of the toxic
(5) If a Material Safety Data Sheet (MSDS) is required to be prepared and distributed for the mixture or trade name product in accordance with 29 CFR 1910.1200, the notification must be attached to or otherwise incorporated into such MSDS. When the notification is attached to the MSDS, the notice must contain clear instructions that the notifications must not be detached from the MSDS and that any copying and redistribution of the MSDS shall include copying and redistribution of the notice attached to copies of the MSDS subsequently redistributed.
(d) Notifications are not required in the following instances:
(1) If a mixture or trade name product contains no toxic chemical in excess of the applicable de minimis concentration as specified in § 372.38(a).
(2) If a mixture or trade name product is one of the following:
(i) An
(ii) Foods, drugs, cosmetics, alcoholic beverages, tobacco, or tobacco products packaged for distribution to the general public.
(iii) Any consumer product as the term is defined in the Consumer Product Safety Act (15 U.S.C. 1251
(e) If the person considers the specific identity of a toxic chemical in a mixture or trade name product to be a trade secret under provisions of 29 CFR 1910.1200, the notice shall contain a generic chemical name that is descriptive of that toxic chemical.
(f) If the person considers the specific percent by weight composition of a toxic chemical in the mixture or trade name product to be a trade secret under applicable State law or under the Restatement of Torts section 757, comment b, the notice must contain a statement that the chemical is present at a concentration that does not exceed a specified upper bound concentration value. For example, a mixture contains 12 percent of a toxic chemical. However, the supplier considers the specific concentration of the toxic chemical in the product to be a trade secret. The notice would indicate that the toxic chemical is present in the mixture in a concentration of no more than 15 percent by weight. The upper bound value chosen must be no larger than necessary to adequately protect the trade secret.
(g) A person is not subject to the requirements of this section to the extent the person does not know that the facility or establishment(s) is selling or otherwise distributing a toxic chemical to another person in a mixture or trade name product. However, for purposes of this section, a person has such knowledge if the person receives a notice under this section from a supplier of a mixture or trade name product and the person in turn sells or otherwise distributes that mixture or trade name product to another person.
(h) If two or more persons, who do not have any common corporate or business interest (including common ownership or control), as described in § 372.38(f), operate separate establishments within a single facility, each such persons shall treat the establishment(s) it operates as a facility for purposes of this section. The determination under paragraph (a) of this section shall be made for those establishments.
The requirements of this part apply to the following chemicals and chemical categories. This section contains three listings. Paragraph (a) of this section is an alphabetical order listing of those chemicals that have an associated Chemical Abstracts Service (CAS) Registry number. Paragraph (b) of this section contains a CAS number order list of the same chemicals listed in
(a)
(b)
(c)
Where x=1 to 10
For
(a)
(b)
(1) An indication of whether the report:
(i) Claims chemical identity as trade secret.
(ii) Covers the entire facility or part of a facility.
(2) Signature of a senior management official certifying the following: “I hereby certify that I have reviewed the attached documents and, to the best of my knowledge and belief, the submitted information is true and complete and that amounts and values in this report are accurate based upon reasonable estimates using data available to the preparer of the report.”
(3) Facility name and address including the toxic chemical release inventory facility identification number if known.
(4) Name and telephone number for both a technical contact and a public contact.
(5) The four-digit SIC code(s) for the facility or establishments in the facility until the reporting year ending December 31, 2005, for which reporting forms are due July 1, 2006. Beginning with the reporting year ending December 31, 2006, for which reporting forms are due July 1, 2007, and for each subsequent reporting year, the six-digit NAICS code(s) for the facility or establishments in the facility.
(6) Dun and Bradstreet identification number.
(7) The name(s) of receiving stream(s) or water body to which the chemical is released.
(8) Name of the facility's parent company and its Dun and Bradstreet identification number.
(90) Name and CAS number (if applicable) of the chemical reported.
(10) If the chemical identity is claimed trade secret, a generic name for the chemical.
(11) A mixture component identity if the chemical identity is not known.
(12) An indication of the activities and uses of the chemical at the facility.
(13) An indication of the maximum amount of the chemical on site at any point in time during the reporting year.
(14) Information on releases of the chemical to the environment as follows:
(i) An estimate of total releases in pounds (except for dioxin and dioxin-like compounds, which shall be reported in grams) per year (releases of less than 1,000 pounds per year may be indicated in ranges, except for chemicals set forth in § 372.28) from the facility plus an indication of the basis of estimate for the following:
(A) Fugitive or non-point air emissions.
(B) Stack or point air emissions.
(C) Discharges to receiving streams or water bodies including an indication of the percent of releases due to stormwater.
(D) Underground injection on site.
(E) Releases to land on site.
(ii) Additional Reporting for the dioxin and dioxin-like compounds category.
(A) For reports pertaining to a reporting year ending on or before December 31, 2007, report a distribution of the chemicals included in the dioxin and dioxin-like compounds category. Such distribution shall either represent the distribution of the total quantity of dioxin and dioxin-like compounds released to all media from the facility; or its one best media-specific distribution.
(B) For reports pertaining to a reporting year ending after December 31, 2007, report the quantity of each member of the dioxin and dioxin-like compounds category in units of grams per year on Form R Schedule 1.
(15) Information on transfers of the chemical in wastes to off-site locations as follows:
(i) For transfers to Publicly Owned Treatment Works (POTW):
(A) The name and address (including county) of each POTW to which the chemical is transferred.
(B) An estimate of the amount of the chemical transferred in pounds (except for dioxin and dioxin-like compounds, which shall be reported in grams) per year (transfers of less than 1,000 pounds per year may be indicated as a range, except for chemicals set forth in § 372.28) and an indication of the basis of the estimate. In addition, for reports pertaining to a reporting year ending after December 31, 2007, report the quantity of each member of the dioxin and dioxin-like compounds category in
(ii) For transfers to other off-site locations:
(A) The name, address (including county), and EPA identification number (RCRA I.D. Number) of each off-site location, including an indication of whether the location is owned or controlled by the reporting facility or its parent company.
(B) An estimate of the amount of the chemical transferred in pounds (except for dioxin and dioxin-like compounds, which shall be reported in grams) per year (transfers of less than 1,000 pounds per year may be indicated as a range, except for chemicals set forth in § 372.28) and an indication of the basis of the estimate. In addition, for reports pertaining to a reporting year ending after December 31, 2007, report the quantity of each member of the dioxin and dioxin-like compounds category in units of grams per year on Form R Schedule 1.
(16) The following information relative to waste treatment:
(i) An indication of the general type of wastestream containing the reported chemical.
(ii) The treatment method applied to the wastestream.
(iii) An estimate of the efficiency of the treatment, which shall be indicated by a range.
(iv) An indication (use is optional) of whether treatments listed are part of a treatment sequence.
(a)
(b)
(1) Reporting year.
(2) An indication of whether the chemical identified is being claimed as trade secret.
(3) Chemical name and CAS number (if applicable) of the chemical, or the category name.
(4) Signature of a senior management official certifying the following: pursuant to 40 CFR 372.27, “I hereby certify that to the best of my knowledge and belief for the toxic chemical listed in this statement, the annual reportable amount, as defined in 40 CFR 372.27(a), did not exceed 500 pounds for this reporting year and that the chemical was manufactured, or processed, or otherwise used in an amount not exceeding 1 million pounds during this reporting year.”
(5) Date signed.
(6) Facility name and address.
(7) Mailing address of the facility if different than paragraph (b)(6) of this section.
(8) Toxic chemical release inventory facility identification number if known.
(9) Name and telephone number of a technical contact.
(10) The four-digit SIC code(s) for the facility or establishments in the facility until the reporting year ending December 31, 2005, for which reporting forms are due July 1, 2006. Beginning with the reporting year ending December 31, 2006, for which reporting forms are due July 1, 2007, and for each subsequent reporting year, the six-digit NAICS code(s) for the facility or establishments in the facility.
(11) Dun and Bradstreet Number of the facility.
(12) Name of the facility's parent company.
(13) Parent company's Dun and Bradstreet Number.
42 U.S.C. 9620.
After the last day of the six-month period beginning on April 16, 1990, whenever any department, agency or instrumentality of the United States enters into any contract for the sale or other transfer of real property which is owned by the United States and at which any hazardous substance was stored for one year or more, known to have been released, or disposed of, the head of such department, agency or instrumentality must include in such contract notice of the type and quantity of such hazardous substance and notice of the time at which such storage, release or disposal took place, to the extent such information is available on the basis of a complete search of agency files.
(a) Except as otherwise provided in this section, the notice required by 40 CFR 373.1 applies whenever the United States enters into any contract for the sale or other transfer of real property which is owned by the United States and on which any hazardous substance was stored for one year or more, known to have been released, or disposed of.
(b) The notice required by 40 CFR 373.1 for the storage for one year or more of hazardous substances applies only when hazardous substances are or have been stored in quantities greater than or equal to 1000 kilograms or the hazardous substance's CERCLA reportable quantity found at 40 CFR 302.4, whichever is greater. Hazardous substances that are also listed under 40 CFR 261.30 as acutely hazardous wastes, and that are stored for one year or more, are subject to the notice requirement when stored in quantities greater than or equal to one kilogram.
(c) The notice required by 40 CFR 373.1 for the known release of hazardous substances applies only when hazardous substances are or have been released in quantities greater than or equal to the substance's CERCLA reportable quantity found at 40 CFR 302.4.
The notice required by 40 CFR 373.1 must contain the following information:
(a) The name of the hazardous substance; the Chemical Abstracts Services Registry Number (CASRN) where applicable; the regulatory synonym for the hazardous substance, as listed in 40 CFR 302.4, where applicable; the RCRA hazardous waste number specified in 40 CFR 261.30, where applicable; the quantity in kilograms and pounds of the hazardous substance that has been stored for one year or more, or known to have been released, or disposed of, on the property, and the date(s) that such storage, release, or disposal took place.
(b) The following statement, prominently displayed: “The information contained in this notice is required under the authority of regulations promulgated under section 120(h) of the Comprehensive Environmental Response, Liability, and Compensation Act (CERCLA or “Superfund”) 42 U.S.C. section 9620(h).”
For the purposes of implementing this regulation, the following definitions apply:
(a)
(b)
(c)
(d)
42 U.S.C. 9659.
Section 310 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), authorizes civil actions by any person to enforce the Act. These civil actions may be brought against any person (including the United States, and any other governmental instrumentality or agency, to the extent permitted by the Eleventh Amendment to the Constitution), that is alleged to become effective pursuant to the Act (including any provision of an agreement under section 120 of the Act, relating to Federal facilities); and against the President or any other officer of the United States (including the Administrator of the Environmental Protection Agency and the Administrator of the Agency for Toxic Substances and Disease Registry) where there is alleged a failure to perform any act or duty under this Act, which is not discretionary with the President or such other officer, including an act or duty under section 120 of the Act (relating to Federal facilities), but not including any act or duty under section 311 of the Act (relating to research, development, and demonstration). These civil actions under section 310 of the Act are to be filed in accordance with the rules of the district court in which the action is instituted. The purpose of this part is to prescribe procedures governing the notice requirements of subsections (d) and (e) of section 310 of the Act as a prerequisite to the commencement of such actions.
(a)
(1) If the alleged violator is a private individual or corporation, notice shall be served by personal service upon, or by certified mail, return receipt requested, addressed to the person alleged to be in violation. If the alleged violator is a corporation, a copy of the notice shall also be served by personal service upon or by certified mail, return receipt requested, addressed to the registered agent, if any, of that corporation in the State in which the violation is alleged to have occurred. A copy of the notice shall be served by personal service upon or by certified mail, return receipt requested, addressed to the United States Attorney General; to the Attorney General of the State in which the violation is alleged to have occurred; and to the head of the Federal agency with delegated responsibility for the CERCLA provision allegedly violated, pursuant to Executive Order 12580, 3 CFR, 1987 Comp., p. 193, as amended by Executive Order 12777, 3 CFR, 1991 Comp., p. 351. If the Environmental Protection Agency has responsibility for the CERCLA provision allegedly violated, then a copy of the notice shall be served by personal service upon or by certified mail, return receipt requested, addressed to the Administrator of the Environmental Protection Agency, and to the Regional Administrator of the Environmental Protection Agency for the Region in which the violation is alleged to have occurred. A list of addresses that may be useful in providing notice of citizen suits is provided at § 374.6. Note that these addresses are subject to change and must be verified prior to use.
(2) If the alleged violator is a State or local agency, notice shall be served by personal service upon or by certified
(3) If the alleged violator is a Federal agency, notice shall be served by personal service upon or by certified mail, return receipt requested, addressed to the head of the agency. A copy of the notice shall be served by personal service upon or by certified mail, return receipt requested, addressed to the United States Attorney General; to the Attorney General of the State in which the violation is alleged to have occurred; and to the head of the Federal agency with delegated responsibility, pursuant to Executive Order 12580, for the CERCLA provision allegedly violated. If the Environmental Protection Agency has the delegated responsibility for the CERCLA provision allegedly violated, then a copy of the notice shall be served by personal service upon or by certified mail, return receipt requested, addressed to the Administrator of the Environmental Protection Agency, and to the Regional Administrator of the Environmental Protection Agency for the Region in which the violation is alleged to have occurred. A list of addresses that may be useful in providing notice of citizen suits is provided at § 374.6. These addresses are subject to change and must be verified prior to use.
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At the time of filing an action under this Act, the plaintiff must provide a copy of the complaint to the Attorney General of the United States and to the Administrator of the Environmental Protection Agency.