2003 CPEO Military List Archive

From: Lenny Siegel <lsiegel@cpeo.org>
Date: 5 Dec 2003 18:11:47 -0000
Reply: cpeo-military
Subject: [CPEO-MEF] New EPA Post-ROD Guidance
U.S. EPA has issued a new guidance document on the dispute over the
authority of regulators to oversee cleanup activity in the
Post-Record-of-Decision phase at Department of Defense facilities. We
are pasting it below. For a fully formatted version, as well as
attachments, go to


Guidance on the Resolution of the Post-ROD Dispute 

November 25, 2003


SUBJECT: Guidance on the Resolution of the Post-ROD Dispute

James E. Woolford, Director, Federal Facilities Restoration and Reuse
Office, OSWER
David J. Kling, Director, Federal Facilities Enforcement, OECA

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

The purpose of this memorandum is to confirm the resolution of the
post-Record of Decision (ROD) dispute as described in the October 2,2003
letter from Raymond Dubois, Jr., Deputy Under Secretary of Defense
(Installations & Environment) and confirmed by Marianne Horinko, Acting
Administrator for EPA on October 24,2003, and to provide guidelines for
implementation of this resolution. (See Attachments 1 and 2 for the
letters). Regions should begin discussions immediately, resources
permitting, with the Services on RODs and other documents that have been
delayed by the dispute. We recognize that there is a tremendous backlog
of work to be accomplished, and Regions need to prioritize which
projects to address. Obviously, those projects that most directly will
help the Agency meet its strategic goals and objectives such as NPL
construction completions, should receive higher consideration.

Regions should apply the revised Navy Principles, which are ready to
implement, to RODs and Federal Facility Agreements/Interagency
Agreements (FFAs/IAGs). We understand that the Army and the Defense
Logistics Agency (DLA) will use the Navy Principles, as well. Regions
should also consider, on a site-specific basis, alternate language for
RODs and FFAs/IAGs that the Air Force may propose. (See Attachment 2).
We have been told that as a result of the post-ROD resolution, DoD will
suspend its 72-hour review requirement for RODs and FFAs/IAGs that
conform to either the Air Force or Navy Principles. This should expedite
approvals. We also understand that DoD will suspend or modify any of its
current policies that are inconsistent with these Principles.

As you can see in Attachment 1, the Navy Principles provide extensive
discussion and direction regarding the regulatory oversight role in the
remedy implementation phase, including requirements for operation and
maintenance of the remedy (including any engineered and non- engineered
portions) and developing RODs, Remedial Designs, Remedial Action Work
Plans, documents memorializing remedial action completion, and FFAs/IAGs
at Federal facilities on the National Priorities List. Given the
collaboration with our offices and the Regions by the Navy and the Army
in developing these Principles, we anticipate that you will find
implementation to be straightforward.

While EPA did not work with the Air Force in developing its "Principles
of Agreement for Performance-Based Records of Decision in Environmental
Restoration" (and the details of how these Principles would apply in
practice is not yet known), EPA agreed that our Headquarters and
Regional offices would give full and fair consideration of the Air
Force's Principles on a site-specific basis. Consistent with EPA's and
the Air Force's responsibilities to ensure the long-term viability of
land use controls and to enter into FFA/IAGs at NPL sites, Regions
should work with the Air Force to address any issues of concern that may
arise as you consider application of the Air Force's Principles in the
development of a site-specific ROD. Issues of concern and solutions
developed, if any, should be shared with our office contacts-Allison
Abernathy of FFRRO and Sally Dalzell of FFEO. As we develop experience
with the Air Force Principles, additional guidance will be provided.

As you know, CERCLA and the National Contingency Plan (NCP), as well as
EPA's related policy and guidance, provide for a great deal of
flexibility in remedy selection, implementation and operations and
maintenance. As a program, we have also encouraged innovation to
streamline the CERCLA processes to increase overall efficiency, reduce
costs and expedite cleanup. There are a few basic tenets that must be
met as we move forward with the Navy and Air Force Principles.

Remedies must be consistent with CERCLA and the NCP. Consequently,
whether remedies are developed using the Navy or Air Force Principles,
when evaluated in their totality, they must meet the nine criteria
established by the NCP. 

It is EPA's position that CERCLA does not authorize the Services to
issue RODs unilaterally. Please advise us if you are aware of a
situation where a Service intends to issue a ROD unilaterally. 

Primary documents, described in existing FFAs/lAGs, are enforceable. At
installations with no FFAs/IAGs, it is our expectation that, at a
minimum, the final remedial design document will be subject to EPA
review and approval along with the remedial action workplan, consistent
with the 1988 EPA/DOD Model IAG. 

Based upon our current familiarity with the Navy Principles, these
principles should be used as a point of departure at this time in any
discussions with Federal agencies and the Services, including the Air
Force. The Navy Principles articulate the minimum criteria for what to
include in a ROD, Remedial Design (RD)/Remedial Action Work Plan for
Institutional Controls (ICs), and for all post-ROD documents from DoD.
Although a ROD, RD/Remedial Action Work Plan does not have to exactly
reflect the Navy Principles, it is our expectation that they will
provide substantially similar information, requirements, objectives,
etc., as is described in the Navy Principles' "General Procedures." 

Based on our experience at several sites, we expect that the Air Force
will propose placing all the IC detail directly into the ROD. This
approach may work well at sites where the facility has an existing and
effective facility-wide system to implement and monitor the necessary
land use control system and the IC requirements are simple and unlikely
to change with time. At a minimum, the IC detail in the ROD should be
functionally consistent with the ROD and RD IC elements described in the
Navy Principles. 

If a Service proposes to eliminate post-ROD documents such as the
Operation and Maintenance Plan and a Document Memorializing Remedial
Action Completion, Regions should consider this only where the
requirements for the substantive information in these documents are
detailed in the ROD or we are requiring the actions through an
enforceable document elsewhere.^1 When placing the substantive
requirements in the ROD, it is our expectation that EPA will continue to
receive appropriate post-ROD documents for information purposes. In all
cases, EPA must review and approve all post-ROD actions needed to ensure
protective cleanups. However, EPA does not have to review and approve
monitoring reports. 

Depending on site-specific circumstances it may not be possible to place
all the necessary detail in the ROD (e.g, if there is a lack of
comprehensive base-wide monitoring system for land use controls, the
implementation actions are not decided at the time of the ROD, or if
many areas require ICs and these areas have a range of different IC
needs, etc.) In such instances, additional enforceable requirements
subject to EPA's oversight authority would be required to ensure a
protective remedy. It will also be necessary to provide mechanisms in
the ROD for revisiting the effectiveness of the measures/objectives
during the remedy implementation process (RD, RA or O&M stages). 

Where using only a ROD to describe ICs, Regions must ensure that only
the institutional control remedy design details and a the engineering
design details of the remedy are included in the ROD. The engineering
details would ordinarily be contained in the Remedial Design (RD). The
engineering requirements for the remedy must still be described in a
separate RD. 

Regions should work to reduce document size, review time, and revisions,
whenever and wherever possible. 

It is EPA's position that EPA must concur on documentation for site
close-out. The scope and terminology for such documentation are to be
considered by an EPA-DoD task force. The task force will examine
potential consolidation and streamlining of close-out and de-listing
documents. In the meantime, Regions should accept Remedial Action
Completion Reports or documents containing equivalent information. 

^1. For instance, in some FFAs such as the Region 9 March Air Force Base
FFA, the Air Force is required at the completion of the remedial action
to prepare a project closeout report that all requirements of the
agreement have been completed. EPA and the State must concur on the Air
Force's determination that the agreement has been satisfied.

Please continue to coordinate closely with our office contacts - Allison
Abernathy of FFRRO and Sally Dalzell of FFEO - on IC language prior to
selecting a remedy and signing all draft and draft final Federal
Facility RODS and Institutional Control Remedial Designs until further
notice. Please allow two weeks review time at headquarters, although we
expect to complete our review in much less time. If you have questions
on how to proceed, please contact Allison Abernathy at 703-603-0052 or
Sally Dalzell at 202-564-2583.


Marianne Horinko, Office of Solid Waste and Emergency Response
JP Suarez, Office of Enforcement and Compliance Assurance
Tom Dunne, Office of Solid Waste and Emergency Response
Barry Breen, Office of Solid Waste and Emergency Response
Steven Shimberg, Office of Enforcement and Compliance Assurance
Susan Bromm, Office of Site Remediation Enforcement
Robert Springer, Office of Solid Waste
Mike Cook, Site Remediation and Technology Innovation
Linda Garczynski, Office of Brownfields Cleanup and Redevelopment
Stephen Luftig, Land Revitalization Group
Earl Salo, Office of General Counsel
Federal Facility Leadership Council


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918

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