Guidance for Conducting Federal-Lead Underground Storage Tank Corrective Actions OSWER Directive 9360.0-16a July 25, 1988
- 1.0 INTRODUCTION
- 2.0 CRITERIA FOR CORRECTIVE ACTION
- 3.0 FUND UTILIZATION
- 4.0 APPROVAL PROCESS
- 5.0 ACCOUNTING INFORMATION
- 6.0 INITIATION OF ON-SITE ACTIONS
- 7.0 MANAGING FEDERAL-LEAD UST CORRECTIVE ACTIONS
- 7.1 Oversight of Contractors
- 7.2 Allowable Costs
- 7.3 Non-Allowable Costs
- 7.4 Cost Management
- 7.5 Ceiling Increases/Scope Modifications
- 7.6 Access Agreements
- 7.7 Worker and Visitor Health and Site Safety
- 7.8 Community Relations and Public Information
- 7.9 Record-Keeping Requirements
- 7.10 Reporting Requirements
- 7.11 Post-Corrective Action Control
- APPENDIX A: DELEGATIONS
- APPENDIX B: ORAL REQUEST INFORMATION OUTLINE
- APPENDIX C: STATE REQUEST LETTERFORMAT
- APPENDIX D: ACTION MEMORANDUM FORMAT
- APPENDIX E: CEILING INCREASE REQUEST FORMAT
- APPENDIX F: FEDERAL-LEAD UST CORRECTIVE ACTION ACCIDENT REPORT FORMAT
- APPENDIX G: DELIVERY ORDER PREPARATION AND PROCESSING
- APPENDIX H: TECHNICAL DIRECTION DOCUMENT PREPARATION AND PROCESSING
- APPENDIX I: INTERIM FINANCIAL PROCEDURES GOVERNING USE OF THE LUST TRUST FUND
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OSWER DIRECTIVE 9360.0-16a
DISCLAIMER: The policies and procedures established in this document are intended solely for the guidance of government personnel. They are not intended, and cannot be relied upon to create any rights, substantive or procedural, enforceable by any party in litigation with the United States. The Agency reserves the right to act at variance with these policies and procedures and to change them at any time without public notice.
OSWER DIRECTIVE 9360.0-16a
This guidance document is designed to provide direction to On-Scene Coordinators (OSCs), other removal program personnel, and Regional Underground Storage Tank (UST) Coordinators for the initiation and coordination of Federal-lead corrective actions in response to petroleum releases from leaking underground storage tanks. The guidance presents procedures to be followed, including required justification and the documentation necessary for undertaking a Federal-lead UST corrective action. A separate guidance document is being developed for corrective actions on Indian lands.
The Superfund Amendments and Reauthorization Act (SARA) of 1986 amends Subtitle I of the Solid Waste Disposal Act (SWDA) to provide the authority for Federal response to petroleum releases from leaking USTs. The amendments also establish a $500 million Leaking Underground Storage Tanks (LUST) Trust Fund to finance both Federal and State UST program activities. Federal-lead UST corrective actions will be performed by the same EPA emergency response and contractor personnel that conduct oil and hazardous substance removal actions.
Note: As used in the guidance, "SWDA refers to the Solid Waste Disposal Act as amended by any other legislation, including SARA, the Resource Conservation and Recovery Act of 1976 (RCRA), and the Hazardous and Solid Waste Amendments of 1984 (HSWA).
It is EPA's policy that LUST Trust Fund-financed responses at petroleum releases from underground storage tanks will be conducted by States under cooperative agreement with EPA, except in rare circumstances. Most States will have broad cooperative agreements to address emergency response and to perform cleanups; in the absence of such agreements, the Region and State are encouraged to develop site-specific cooperative agreements, under which the state will conduct corrective actions at individual sites. EPA will undertake a corrective action only in instances where there is a major public health or environmental emergency, and the State is unable to respond. In addition, the state must demonstrate that it has contacted or attempted to contact owners or operators, and the State is convinced that owners or operators are unable or unwilling to provide adequate, timely response. Federal-lead corrective action will be limited to stabilization of the immediate situation, with the expectation that further cleanup will be performed by the State under an appropriate cooperative agreement.
For the purposes of this guidance, the following definitions apply:
Exposure Assessment - As defined in Section 9003(h)(10) of SWDA, "the term 'exposure assessment' means an assessment to determine the extent of exposure of, or potential for exposure of, individuals to petroleum from a release from an underground storage tank based on such factors as the nature and extent of contamination and the existence of or potential for pathways of human exposure (including ground or surface water contamination, air emissions, and food chain contamination), the size of the community within the likely pathways of exposure, and the comparison of expected human exposure levels to the short-term and long-term health effects associated with identified contaminants and any available recommended exposure or tolerance limits for such contaminants. Such assessment shall not delay corrective action to abate immediate hazards or reduce exposure."
Major Public Health or Environmental Emergency - To qualify for Federal response action, an UST site must be deemed a major public health or environmental emergency. (This definition is more strict than that for current hazardous substance removal actions and is intended to significantly limit the number of Federal-lead UST responses, so that only health or environmental emergencies are addressed). Such an emergency exists if the following criteria are met:
- The release poses an immediate and substantial threat of direct
human, animal, or food chain exposure to petroleum; or
- The release poses an immediate threat of fire and/or
- The release poses an immediate and substantial threat to public
drinking water supplies; or
- The release poses an immediate threat to human health or substantial amounts of property, or poses and immediate and substantial threat to natural resources.
Petroleum - As defined in Section 9001(8) of SWDA, "the term 'petroleum' means petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degree Fahrenheit and 14.7 pounds per square inch absolute)." This term includes, but is not limited to, gasoline, diesel fuel, and jet fuel.
Underground Storage Tank - As defined in Section 9001(1) of SWDA, "the term 'underground storage tank' means any one or combination of tanks (including underground pipes connected thereto) which is used to contain an accumulation of regulated substances, and the volume of which (including the volume of the underground pipes connected thereto) is 10 per centum or more beneath the surface of the ground. Such term does not include any:
- farm or residential tank of 1,100 gallons or less capacity used
for storing motor fuel for noncommercial purposes,
- tank used for storing heating oil for consumptive use on the
premises where stored,
- septic tank,
- pipeline facility (including gathering lines) regulated under
i) the Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. App. 1671, et seq.),
ii) the Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. App. 2001, et seq.), or
iii) which is an intrastate pipeline facility regulated under State laws comparable to the provisions of law referred to in clause (i) or (ii) of this subparagraph,
- surface impoundment, pit, pond, or lagoon,
- storm water or waste water collection system,
- flow-through process tank,
- liquid trap or associated gathering lines directly related to
oil or gas production and gathering operations, or
- storage tank situated in an underground area (such as a basement, cellar, mineworking, drift, shaft, or tunnel) if the storage tank is situated upon or above the surface of the floor.
The term 'underground storage tank' shall not include any pipes connected to any tank which is described in subparagraphs (A) through (I)."
Final clarification of these terms and definitions will be found in the regulations (and preamble) for underground storage tanks, scheduled for publication later in 1988.
OSWER DIRECTIVE 9360.0-16a
2.0 CRITERIA FOR CORRECTIVE ACTION
2.1 Legislative Standards and Criteria
This guidance is designed to provide direction for undertaking Federal-lead corrective action at petroleum leaks from underground storage tanks. The basic criteria for a Federal response are found in Section 9003 of the amended SWDA; Subsection (c) specifies the release detection, prevention, and correction requirements for USTs to be promulgated by EPA, and Subsection (h) provides two sets of criteria for Federal-lead UST responses.
Before the effective date of the regulations promulgated under Section 9003(c) of SWDA, a corrective action may be undertaken if the Administrator (or State under cooperative agreement) deems is necessary to protect human health and the environment, as authorized in Section 9003(h)(1) of SWDA. The EPA (or the responding State) must give priority to sites where no owner or operator is able to undertake proper corrective action, and to UST releases posing the greatest threat to human health and the environment.
After the regulations become effective, a response may be conducted only if corrective action is necessary to protect human health and the environment and one or more of the following criteria, presented in Section 9003(h)(2) of SWDA, are met:
- No financially solvent tank owner or operator, capable of
carrying out proper corrective action, is found;
- The situation requires prompt action to protect human health
and the environment;
- Corrective action costs exceed the financial responsibility
requirements established for the tank, and expenditures from the
LUST Trust Fund are necessary to ensure effective action; or
- The tank owner or operator has failed, or refused, to comply with an administrative order to perform corrective action.
Priority must be given to releases posing the greatest threat to human health and the environment.
2.2 EPA Criteria
In addition to the basic policy guidelines discussed in Section 1.3, and the legislative restrictions presented in Section 2.1, EPA will undertake corrective action only if a major public health or environmental emergency exists, as defined in Section 1.4.
EPA will take only those corrective actions that stabilize the emergency situation, allowing State or other responders to implement permanent cleanup remedies. If EPA's mitigative measures require continuing post-corrective action control (operations and maintenance), the affected State will be responsible for these measures as soon as possible.
OSWER DIRECTIVE 9360.0-16a
3.0 FUND UTILIZATION
In accordance with SWDA Section 9003(h), the statute that describes the Federal response under the LUST Trust Fund, and in Compliance with EPA policy for Federal-lead actions, the general activities listed in Section 3.1 may be conducted with Fund monies. See Sections 7.2 and 7.3 for more detail on allowable and non-allowable costs related to performing corrective actions.
3.1 Eligible Activities
- Site investigations or exposure assessments (see Section 1.4)
to determine potential health effects of a leak, and to establish
corrective action priorities.
- Corrective actions such as stabilization of the site, temporary
relocation of affected residents, or provision of alternate
household water supplies.
- Enforcement activities (see Section 4.4) including development,
implementation, and oversight of enforcement orders directed to
responsible tank owners/operators.
- Cost recovery activities to seek reimbursement of LUST Trust Fund expenditures from liable parties.
3.2 State Cost Share
Until EPA's final regulations for release detection, prevention, and correction become effective later in 1988, there is no requirement for States to cost share or match Trust Fund monies. After the effective date of the regulations, States must pay a 10 percent share of the cost of LUST Trust Fund corrective actions, as required by Section 9003(h)(7)(B) of SWDA. However, failure to pay this required cost share will not prevent EPA from conducting a response if immediate action is necessary to mitigate an imminent or substantial endangerment to human health or the environment.
OSWER DIRECTIVE 9360.0-16a
4.0 APPROVAL PROCESS
Federal-lead corrective actions may be approved only if the definitions and criteria outlined in sections 1.0 and 2.0 are met. In particular, the site must pose a major public health or environmental emergency to which the owner or operator or the State is unable to respond in an adequate and timely manner. In addition, no Federal-lead corrective action will be conducted unless an appropriate request is received from a State.
The Federal-lead UST delegations of authority, as well as two approval processes (based on response time considerations), are presented below.
4.1 Delegation of Authorities
All obligations for Federal-lead UST corrective actions (with limited exceptions for emergency situations, as noted below in section 4.1.4) must be approved by the Assistant Administrator (AA), Office of Solid Waste and Emergency Response (OSWER), as provided by Delegation 8-33 (see Appendix A). This authority may be redelegated to the Office Director (OD), Office of Emergency and Remedial Response (OERR). If redelegated, the OD, OERR, must obtain the concurrence of the OD, Office of Underground Storage Tanks (OUST).
- during non-duty hours (after 5:00 p.m. EST [local time in
Washington, D.C.] on weekdays, or on Saturday, Sunday, or federal
holidays), or if the situation precludes contacting Headquarters
prior to initiating necessary response actions, and
- if there is risk of death, injury, or catastrophic
environmental damage, due to a petroleum release from an UST. Such
an emergency would be posed by imminent or actual events such
- fire and/or explosion; or
- substantial or irreversible damage to a sensitive ecosystem or significant natural resource.
- fire and/or explosion; or
RAs may redelegate this limited authority to the Division Director and OSC level, as provided in Delegation 8-33. If redelegated, the OSC's $50,000 authority is included in the RA's $50,000 authority; it is not in addition to that authority. This authority may be used to initiate response, and may be used to initiate project restarts should new and unforeseen emergency conditions occur which meet the above criteria. This authority cannot be used for continuations of work in progress. The costs that are applied toward the RA's authority to obligate funds up to $50,000, and the costs that are excluded from this limit, are similar to those defined in EPA's Superfund Removal Procedures - Revision Number Three.
4.2 Oral Request from State
When the response time demands of the situation preclude implementing the formal written approval process described below in Section 4.3, the following oral approval process may be implemented.
- The OSC or other Regional official, after consultation with the
Regional UST Coordinator, notifies the appropriate Headquarters
Emergency Response Division (ERD) Regional Coordinator of the
Region's intent to request oral approval from Headquarters to
initiate and UST corrective action (phone # 8-382-2188, Magnafax
#755-2155, TWX #710-822-9269, E-mail #EPA 5511).
- The OSC gets oral approval from the RA or delegatee.
- The OSC or other Regional official provides the information set
forth in Appendix B to Headquarters.
- The ERD Regional Coordinator reviews and processes the request,
and relays the request and a recommendation for approval/denial to
the appropriate Headquarters official.
- The ERD Regional Coordinator communicates the decision and the
appropriate accounting information (see Section 5.0) to the OSC or
other Regional official as quickly as possible, and confirms the
decision in writing by the end of the next work day. The OSC must
notify the Regional UST Coordinator of the decision.
- The RA transmits a formal action memorandum (see Appendix D), along with a formal State request letter (see Appendix C) to ERD within 10 days.
- The OSC obtains oral approval from the RA, or from his/her
delegatee (see Section 4.1, or Appendix A). This authority may only
be used to obligate funds up to $50,000, for corrective actions
which meet the criteria in section 4.1.1.
- The OSC notifies the Regional UST Coordinator (see Section 4.4)
and ERD Regional coordinator of this action as soon as
- The RA transmits a formal action memorandum (see Appendix D), along with a formal State request letter (see Appendix C) to ERD within 10 working days. A ceiling increase request (see Appendix E) may be incorporated within this memorandum, if needed.
- The OSC telephones the National Response Center (NRC),
800-424-8802, identifies himself/herself, and asks to be put in
contact with the ERD Duty officer.
- The NRC contacts the ERD Duty Officer.
- The ERD Duty Officer contacts the OSC and asks for the
information contained in Appendix E). The ERD Duty Officer notifies
the supervisory duty officer, the OD/OERR, the OD/OUST, and the
AA/OSWER (if appropriate), who approves or denies the
- The ERD Duty Officer communicates the decision to the OSC as
quickly as possible, and confirms the decision in writing by the
end of the next work day.
- The RA sends a formal action memorandum (see Appendix D), along with the State request letter (see Appendix C) to ERD within 10 days.
4.3 Written Request from State
This approval process must be used whenever the response time demands allow. Typically, this will mean that Federal response can be delayed for several days.
The affected state shall perform a thorough site evaluation to clearly determine the extent of release, source, substance(s) released, and threats posed by the release. The State shall also make every reasonable attempt to locate owners or operators and complete corrective actions. The State must then prepare a formal written request for Federal-lead UST corrective action that presents all of the pertinent site information, using the State request letter format in Appendix C. The request letter should be sent to the Regional OHM Coordinator, or other designated Regional management official, from the Director of the State UST agency designated by the Governor of the affected State.
When a letter requesting UST corrective action is received from the State, the Regional UST Coordinator must be consulted and provided a copy of the letter (see Section 4.4).
The OSC and Regional UST Coordinator jointly evaluate the State request to determine whether:
- Additional information is required. If the request letter (see
Appendix C) is deficient, the Region should contact the State and
obtain additional information, or instruct the State to resubmit
the request letter incorporating the Region's comments. If
necessary, the OSC may perform a perfunctory site inspection to
gather needed data.
- Federal-lead UST corrective action is not justified. If the
situation does not meet the criteria discussed in Section 2.0, the
OSC and the Regional UST Coordinator must recommend to the OHM
Coordinator that the request be denied.
- Federal-lead UST corrective action is justified. If the situation appears to meet the criteria discussed in Section 2.0, the following approval procedures should be implemented.
The OSC notifies the appropriate ERD Regional Coordinator of the Region's intent to request Headquarters' approval to initiate a Federal-lead UST corrective action (phone # 8-382-2188, Magnafax #755-2155, E-mail #EPA 5511, TWX #710-822-9269). The OSC should also forward a copy of the State request letter , or a draft copy of the action memorandum to allow the ERD Regional Coordinator to expedite the Headquarters approval process.
The OSC should provide the information set forth in the State request letter (see Appendix C) by submitting an action memorandum, using the format presented in Appendix D. The action memorandum must be signed by the RA and addressed to the AA, OSWER through the OD, OERR, to the attention of the Director, ERD.
The ERD Regional Coordinator reviews the action memorandum, gets concurrences from other offices as necessary (e.g., OUST, OGC), and sends it with a recommendation for approval/denial to the appropriate Headquarters official for final determination and signature.
The ERD Regional Coordinator then communicates the OSWER decision to the Region as quickly as possible, along with the appropriate accounting information (see Section 5.0). Written confirmation of the decision if forwarded to the OSC and the Regional UST Coordinator as soon as practicable.
4.4 Regional UST Coordinator/Enforcement
The Regional UST Coordinator is a Regionally-designated employee who acts as a liaison between emergency response personnel and Regional UST program management. The Regional UST Coordinator may have the information about a specific site, the status of a State's UST program, and the State's eligibility for a cooperative agreement under the LUST Trust Fund, that could prove useful in weighing the State's response capabilities against the characteristics and magnitude of an UST emergency. The Regional UST Coordinator should be informed as soon as possible whenever the Region receives a State request for Federal-lead UST corrective action; whenever practicable, the Regional UST Coordinator, together with the OSC, should evaluate the appropriateness of Federal-lead corrective action prior to seeking approval. The OSC should keep the Regional UST Coordinator informed of all significant events during Federal-lead UST corrective actions.
States, under cooperative agreements, will be expected to initiate and pursue enforcement action. The Regional UST Coordinator is responsible for coordinating with affected State agencies, particularly in identifying owners or operators and pursuing enforcement actions. EPA has the authority to issue several different types of administrative orders under SWDA: Section 9005 warning letters can be issued to compel tank testing and investigation to detect suspected leaks; Section 9003(h) orders can be issued to require site assessment, development of a response plan, and implementation of corrective action pursuant to the EPA-approved plan; and Section 9006(a) orders can be issued to enforce compliance with a previous order. States are expected to have or develop similar enforcement authorities. Enforcement efforts to secure response from owners or operators must not delay Federal-lead corrective action if site conditions meet the criteria in Section 4.1.4 of this guidance.
OSWER DIRECTIVE 9360.0-16a
5.0 ACCOUNTING INFORMATION
The LUST Trust Fund appropriation number is 68-20X8153; the program element is FPYV2B. For all actions given prior Headquarters approval, account and Document Control numbers will be issued to the ERD Regional Coordinator by the Headquarters Financial and Administrative Management Support Staff (FAMS). The ERD Regional Coordinator will then inform the OSC of the assigned numbers.
Each Region has approval authority up to $50,000 per site to use in responding to certain UST emergencies (see Section 4.1.1 for more detail). For actions initiated by the Region using its $50.000 authority, account and Document Control numbers should be issued by the Regional Financial Management Officer.
Detailed information describing Trust Fund appropriation, account number structure, activity codes, and other relevant matters has been issued by the Comptroller General to all Financial Management Officers in Comptroller Policy Announcement Number 87-13, "Interim financial Policies and Procedures Governing Use of the Leaking Underground Storage Tank (LUST) Trust Fund" (see Appendix I).
The Policy Announcement establishes policies and procedures for use of the Fund by EPA and State governments. Each site will be assigned a ten-digit account number in the Financial Management System (FMS), which enables tracking of site-specific costs for cost management and cost recovery purposes. The Policy Announcement details methods of charging time and other direct costs to the Fund.
OSWER DIRECTIVE 9360.0-16a
6.0 INITIATION OF ON-SITE ACTIONS
Mechanisms available to the OSC for initiating an UST response include:
- Procurement of cleanup services;
- Procurement of technical assistance; and
- Assistance through other agencies.
6.1 Procuring Cleanup Services
For site tracking purposes, the Agency has defined the "start" of the action to be the date on which a cleanup contractor (e.g., ERCS) mobilizes on the site, not the date on which a site assessment is performed, the action is approved, or the first obligation occurs.
The ERCS zone contracts, supplemented by the Regional ERCS contracts, form the core of EPA's emergency response resources. These contracts provide 24-hour, immediate delivery of cleanup contractor personnel, services, and material for response to CERCLA hazardous substance releases. The contracts also include provisions for UST response. Procedures to mobilize ERCS contractors are identical to current removal program procedures, as outlined in Superfund Removal Procedures -- Revision Number Three, ERCS Users' Manual, and EPA Superfund Emergency Contracting Procedures. An Ordering Officer should fill out a Delivery Order (DO) and Procurement Request (PR) using the accounting information provided by the ERD Regional Coordinator or the Region's Financial Management Officer. Instructions for completing and processing DOs can be found in Appendix G.
When the use of the ERCS contractor is inappropriate due to conflict of interest, response time considerations, or other unusual or unforeseen circumstance, other contractors may be used. For information and procedures on procuring other contractor services, OSCs should contact the appropriate Headquarters Procurement and Contracts Management Division (PCMD) Contracting Officer (CO).
6.2 Procuring Technical Assistance
The TAT contracts provide technical and management assistance to OSCs. TAT services include sampling, cleanup monitoring, documentation of site conditions and activities, project planning, health and safety planning, cost tracking, quality assurance, and related tasks. The two TAT zone contracts include provisions for UST response. Procedures for implementing these contracts are similar to current removal program procedures as outlined by Superfund Removal Procedures -- Revision Number Three and the TAT Contract User's Manual, except that the Project Officer must give approval. The Region's Deputy Project Officer (DPO) should complete a Technical Direction Document (TDD) form, being sure to specify that the source of funding is the LUST Trust Fund (instructions for completing and processing TDDs can be found in Appendix H). The DPO must obtain the Headquarters Project Officer's (PO) approval of the TDD; the PO will contact the contractor Zone Program Manager (ZPM) as soon as possible to confirm approval. The ZPM will then communicate the PO's approval to the appropriate TAT Leader, who may only then implement the task requested by the TDD. Appendix H provides a detailed description of the process for activating TAT.
The EPA Environmental Response Team (ERT) provides a wide range of technical, analytical, investigative, and planning services. To obtain ERT assistance, contact the ERD Regional Coordinator.
6.3 Assistance from Other Agencies
Other Federal agencies may have personnel with specific expertise and experience that could be useful to OSCs in performing Federal-lead UST corrective actions. EPA has a Memorandum of Understanding (MOU) or site-specific Interagency Agreements (IAGs) with each of several agencies to facilitate their direct participation in hazardous substance responses using CERCLA monies. Although there is no provision for their participation in Federal-lead UST corrective actions, which are funded under SWDA, OSCs may contact other agencies to seek informal advice or assistance as appropriate. The following agencies may be particularly helpful.
FEMA is often used to provide assistance with temporary and permanent relocation of affected residents and businesses during removal actions.
ATSDR can provide advice concerning exposure effects of certain substances, calculate risks to the public and the environment from releases and issue health advisories where appropriate, and can recommend cleanup levels. ATSDR may be able to provide assistance or guidance in performing exposure assessments (as defined in Section 1.4) at Federal-lead UST corrective action sites.
USCG is experienced in responding to a wide range of release incidents involving petroleum. USCG may have site-specific information concerning UST releases in coastal zones or affecting surface waters, and should be notified whenever Federal-lead UST corrective action is considered at such a release to determine whether response is more appropriate under the Clean Water Act (CWA).
6.4 Stabilization Standards
Federal-lead UST corrective action will generally be limited to stabilization of the emergency conditions that justified the intiation of the responsek occasionally, however, more complete cleanup may be appropriate. Whenever possible, further cleanup after stabilization should be conducted, as needed, by the State under an appropriate cooperative agreement with EPA.
When conducting stabilization actions, OSCs should consider relevant state standards and other applicable guidelines, as may be provided by the Regional UST Coordinator. The OSC shoulde stabilize the site to a level that protects human health and the environment by mitigating the immediate threats.
OSWER DIRECTIVE 9360.0-16a
7.0 MANAGING FEDERAL-LEAD UST CORRECTIVE ACTIONS
This section provides guidance on the roles and responsibilities of OSCs when managing UST response projects. A variety of topic is addressed, including oversight of contractors, allowable costs, cost management, ceiling increases and scope modifications, access agreements, health and safety, community relations, reporting requirements, and post-corrective action site control considerations.
OSCs have complete responsibility for directing response operations. This means that they must ensure that all on-site activities are consistent with Subtitle I of SWDA, as amended by Section 205 of SARA, and program policies and procedures; that all expenditures of funds are appropriate and reasonable; and that subsequent cost recovery actions will be supportable.
7.1 Oversight of Contractors
A major OSC role is oversight of the contractors performing response activities. Examples of oversight activities include:
- Preparation of the work report;
- Review and certification of the Contractor Cost Report (EPA
Form 1900-55), which lists daily contractor costs;
- Daily monitoring of contractor personnel and equipment to
verify satisfactory completion of the work;
- Determination of the overall project status.
In conducting these oversight activities, OSCs may request support from the TAT. Examples of such support are maintaining entry/exit logs of all contractor personnel and equipment, communicating oral or written messages from the OSC to the cleanup contractor, and maintaining logs related to project costs. The TAT staff may not, however, assume the OSC's responsibilities for directing site activity, verifying satisfactory completion of the work, or approving 1900-55 forms.
Compelling circumstances, such as another response incident, may require the OSC to leave the site for more than 24 hours. The OSC may designate capable persons from Federal, State, and local agencies to act as OSC representatives to supervise response operations. TAT staff, because of their non-governmental status, may not be designated OSC representatives.
Response program policy dictates the following guidelines for, and limitations on, the designation and activities of OSC representatives:
- Federal employees - The preferred designee would be
another Federal employee because such a designee would have
authority to direct, not merely oversee, contractors; to initiate
activities involving expenditures of money; and to certify
completion of work and costs.
Examples of appropriate Federal employees are another OSC, a non-OSC Superfund employee, or a non-Superfund employee from within the Region; an OSC or other employee from another Region; or Headquarters personnel or employees from another Federal agency such as USCG.
As a practical matter, reassignment of staff from other duties may be difficult, particularly with respect to personnel outside the program, Region, or Agency. Moreover, designation of a Federal employee who does not have adequate training in program procedures and response operations could endanger the response.
- State/local staff - State and local officials are
precluded from taking any actions involving expenditures of LUST
Trusts Fund monies, unless an appropriate cooperative agreement has
been executed. In practice, this means that State and local
representatives may transmit and supervise the implementation of
the OSC's work orders but may not provide new instructions.
- TAT - TAT personnel may no serve as OSC designees; they may, however, continue to provide support services at the site and monitor cleanup contractor performance in the absence of the OSC.
Because of the practical difficulties in designating an OSC representative who can assume full on-site responsibilities, OSCs are discouraged from leaving the site except in very limited circumstances. Examples of such circumstances are when EPA has an agreement with a State or local government to provide water hookups, or when the site clearly has "insignificant" activity (e.g., a pump running).
7.2 Allowable Costs
In general, EPA will expend LUST Trust Fund monies at a Federal-lead UST corrective action only to stabilize the situation and mitigate those problems that are directly responsible for creating the major public health or environmental emergency. Because of limitations on funds, long-term remediation and post-corrective action site control (operation and maintenance) activities must be performed by the State.
During an UST corrective action, the OSC is authorized to incur only those costs that qualify as appropriate uses of the LUST Trust Fund. These costs must be directly allocable to a particular response, reasonable, and necessary to accomplish the response.
This section summarizes both extramural and intramural costs that are allowable. To assist OSCs in tracking indirect costs, the Financial Management Division issues provisional EPA indirect cost rates. These rates should be used to estimate indirect costs incurred during the action.
In addition to the items specified below, an exposure assessment, as defined in Section 1.4 of this guidance, may also be performed at a Federal-lead UST corrective action. This assessment is a brief version of the detailed and complex risk assessment often performed to estimate exposure potential near RCRA and CERCLA hazardous substance sites. Although the exposure assessment is an allowable cost, it may rarely be appropriate due to time and financial restrictions imposed by the response criteria presented in Section 2.0 of this guidance. The ERD Regional Coordinator should be notified if an exposure assessment is being considered.
- Cleanup contractor and consulting costs, including waste
transportation and disposal, now provided principally under the
ERCS contractor system and supplemented as needed by non-ERCS
- Support contractor costs, including TAT.
- Subcontractor costs.
- Other costs, such as EPA leasing or rental of equipment;
incremental costs for EPA-owned equipment; supplies, materials, and
equipment (including transportation costs) procured for the
specific corrective action and full expended during the corrective
action; and utilities.
- 15% contingency allowance, for unforeseen extramural costs.
- EPA direct costs, including the salaries, overtime, travel, and
per diem of on-site EPA personnel.
- Direct costs incurred by ERT.
- Direct costs incurred by Headquarters and Regional technical
and legal staff.
- EPA Regional Laboratory costs.
- Indirect costs, including EPA Regional and Headquarters management and administrative costs and fringe benefits.
7.3 Non-Allowable Costs
Corrective action costs not allowed under the LUST Trust Fund include (but are not limited to):
- State and local costs for which prior authorization was not
specifically given by the OSC or addressed in a cooperative
agreement (e.g., municipal services such as use of police or fire
departments and state personnel who are on-scene performing tasks
not specifically requested by the OSC).
- Costs for the research and development of equipment and
response technologies used in conjunction with an UST corrective
action (e.g., emerging alternative disposal technologies). Funding
may be available, however, through other sources; contact the ERD
Regional Coordinator for more information.
- Costs incurred by a contractor to provide response measures, for which that contractor is later found to be liable.
7.4 Cost Management
During Federal-lead UST corrective actions, all Regions must implement an effective system for managing response costs. This management system must ensure the efficient use of public monies, enable all response costs to be tracked against dollar ceilings, and provide the necessary information to support cost recovery actions.
Ultimate responsibility for cost management rests with the OSC. Detailed guidelines for the OSC are in the Removal Cost Management Manual. That manual identifies four components of cost management (i.e., cost projection, cost control, cost documentation, and cost recovery) which are applicable to Federal-lead UST corrective actions, and are summarized briefly below.
The key to effective cost management is through cost projection prior to the state of a response, as well as during a response. Pre-response estimates of costs form the basis for establishing a total project ceiling recorded in the action memorandum; cost projection during a response allows the OSC to anticipate the need for increases in the project ceiling. To estimate indirect costs, OSCs should use the provisional rates provided by the Headquarters Financial Management Division through the Region's Financial Management Officer.
Cost control consists of cost planning and monitoring as well as verification of costs. OSCs are in the most advantageous position to control response costs if they stay informed on the availability of cost-effective resources. Thus, OSCs should: identify non-commercial support services and response equipment available to the Region; familiarize themselves with cost-effective cleanup services in the event contracting outside the ERCS network is required; maintain information on the cost of obtaining, operating, and maintaining safety equipment; and review final UST response reports of costs at past responses.
In addition, OSCs are responsible for monitoring site work and verifying that the contractor has provided the personnel, equipment, expendables, and subcontractors for which it has charged the government. OSCs should note the strict limitations under the EPA contract management policies for delegating these responsibilities to non-Federal personnel such as TAT, or to State officials not operating under a cooperative agreement (see Section 7.1).
Cost documentation refers to the specific set of procedures that OSCs use to maintain a record of all on-site activities and associated costs. The method of cost documentation should be consistent from day to day at a specific response but may vary from site to site and Region to Region. The method an OSC selects must ensure thorough record-keeping on the following six information items:
- Chronology of events and decisions;
- Site conditions;
- Movement of personnel and equipment (e.g., site entry and
- Contractor planned and authorized work compared to actual
- Contractor costs (e.g., commercial cleanup contracts);
- Other costs (e.g., TAT, ERT, Regional laboratory services, direct Headquarters and Regional intramural obligations, site access/acquisition).
The Removal Cost Management Manual provides applicable guidance on methods OSCs can use to determine each category of direct cost, and includes examples of the various types of documents OSCs can use to record information (e.g., POLREPs, entry/exit log, incident obligation log).
Because of the possibility of a cost recovery action for any case involving the expenditure of LUST funds, OSCs have a responsibility to observe, document, and preserve critical evidence relating to the response and its costs. The cost documentation efforts described above are designed to ensure that facts concerning the release and owners or operators are recorded before response activity or the passage of time obscures or eliminates the evidence; that physical evidence essential for a trial is collected and preserved in a manner that will withstand judicial scrutiny; and that the government has maintained sufficient evidence of actual costs and substantiation of the need to incur those costs.
The essential elements of a cost recovery action are:
- Evidence of a release or threat of release of petroleum from an
- Evidence that the defendant(s) is owner or operator of the
- Evidence that the corrective action taken was necessary to
protect human health and the environment; and
- Proof of incurred costs.
7.5 Ceiling Increases/Scope Modifications
OSCs should anticipate the need for ceiling increases or scope changes as early in the corrective action as possible so that the approval process does not interrupt the continuity of a project. The OSC should notify the appropriate ERD Regional Coordinator of such changes prior to submitting a formal request for approval; OSCs are encouraged to send a draft of the impending formal request to the ERD Regional Coordinator, to expedite concurrence and approval.
The initial action memorandum approving the corrective action establishes a project ceiling. This ceiling represents the total funding approved for the corrective action. OSCs cannot incur costs in excess of the initial project ceiling unless a ceiling increase is approved.
The request for a ceiling increase should contain the information shown in Appendix E. The level of detail required will vary according to site-specific circumstances. In general, the request should include information on the current site conditions, actions taken to date, costs to date, and the reasons why the ceiling increase is required (e.g., changed site conditions or increased disposal costs). It is important to explain whether the increase is 1) to perform more work, or 2) to respond to an additional threat to human health, welfare, or the environment, not previously documented, requiring additional corrective measures. If the ceiling increase is needed to complete actions previously approved, the request should detail the reasons why additional funds are required for those actions. If the ceiling increase is needed to address additional threats, the request should contain a new finding that the threats pose a major public health or environmental emergency. Ceiling increase requests must be submitted to Headquarters under the signature of the RA and must include the information outlined in Appendix E.
The RA should send the request for a ceiling increase to the AA, OSWER. In order to ensure an expeditious, smooth processing of the request, a final copy should also be sent to the ERD Regional Coordinator who is responsible for coordinating the Headquarters concurrence process.
UST corrective actions are approved by the AA, OSWER with a complete scope of work. In order to expand this scope (e.g., to address an additional threat), a formal change of scope request, specifying the additional corrective actions to be performed, must be approved by the official who approved the initial request.
The request should include information on current site conditions, actions taken to date, costs to date, and the additional proposed corrective actions aw ell as the additional threat.
7.6 Access Agreements
Gaining access to sites, where response actions require the use of adjoining property or property within the site boundaries owned by parties who are not owners or operators of the UST, may require obtaining access agreements or negotiating for rights-of-way with the property owners. Such agreements may be needed in order to establish a new road, to allow for the use of a private road, or to establish a command post.
Primary responsibility for arranging for site access rests with the State. However, the OSC is ultimately responsible for obtaining site access agreements. The OSC may need to work with the State to ensure that arrangements are executed. Typically, the State will approach the property owner and the final access agreement will be drawn up either between the landowner and the State, or directly between the landowner and the OSC or the response contractor. Property access agreements must cover the duration of the response action and any associated post-corrective action control measures. The OSC is responsible for overseeing all site access negotiations and agreements, regardless of whether they are obtained through Federal or State channels. If gaining access voluntarily is a problem, the OSC should consult the Office of Regional Counsel. The OSC should also consult the Regional Counsel to obtain legal advice on gaining access to property for which the State has no authority, such as rights-of-way for public utilities, railroads, and Federal lands.
The Agency will not, as a rule, pay property owners for rights-of-way or easements for property adjacent to the site or within site boundaries. Cases where payment becomes an issue in arranging for site access should be referred to the Regional Counsel or the ERD Regional Coordinator for assistance.
A written agreement signed by the OSC or EPA contractor with an owner/operator of an UST or a property owner who is not and owner/operator but whose property is contaminated or threatened cannot promise to compensate the owner for use of the property, to indemnify the owner for potential third party liability, or to pay for damages. Any written agreements offered by any property owner must be reviewed by Regional Counsel.
Generally, the OSC should attempt to restore the property, to the extent practicable, to its pre-response condition (e.g., regrading and reseeding a temporary site access road). The OSC may recommend fair payment to the owner as compensation, or assess the extent of any contamination and arrange for disposal, if necessary. In cases where the amount or type of compensation becomes an issue, the OSC should consult with the Regional Counsel or ERD Regional Coordinator.
7.7 Worker and Visitor Health and Site Safety
Response actions are subject to all applicable Federal, State, and local Occupational Safety and Health (OSH) laws. Standards of the Occupational Safety and Health Administration (OSHA) for the basis for the safety and health protection of workers involved in Federal UST corrective actions. Where State OSH laws exist, these laws may also apply to response actions. The safety and health requirements of other Federal agencies may also apply.
For LUST Trust Fund-financed corrective actions, all Federal, State, and contractor personnel involved are required to comply with the lead agency's overall occupational safety and health policies and with a site-specific safety plan. All visitors to the site are also subject to the same health and safety requirements.
Because response activities associated with each specific incident are unique, standard procedures will often have to be adapted or modified to meet the incident-specific requirements. For this reason, a written safety plan must be prepared for each incident, distributed, and posted in the command post. This should be done before response operations begin on the site, or as soon as possible thereafter. The plan must cover all phases of incident operations and identify key personnel and must be updated or modified as needed or as conditions change. As a minimum requirement, the safety plan should address the following:
- Establishment of the number of personnel permitted to enter the contamination zones.
- Establishment of entry and escape routes.
- Establishment of procedures to identify, locate, and alert off-site medical personnel.
- Determination of physical, chemical, and biological properties of known contaminants.
- Establishment of decontamination protocol.
- Establishment of levels of protection.
- Establishment of air-monitoring protocol.
- Establishment of general safety rules and equipment.
- Scheduling of daily safety meetings.
- Posting of key agency and emergency contacts.
OSCs are responsible for ensuring that workers and visitors are informed of on-site hazards and the provisions of the site health and safety plan. The OSC shall ensure that all individuals entering the site (e.g., EPA, TAT, contractors, press) have read the plan and understand its contents.
Throughout the response action, the OSC may call upon OSHA to advise on worker health and safety issues. When needed, the OSC may request that the National Institute of Occupational Health (NIOSH) provide assistance to OSHA in testing worker protection equipment and gathering information for guidance on safety issues. The OSC must be cognizant of on-site health and safety activities and is responsible for monitoring requirements and applicable Federal and State laws and regulations. However, OSCs are directly responsible only for their own staff; each government agency and private employer is responsible for the health and safety of its own employees and for ensuring compliance with OSHA requirements, applicable State OSH laws, and Agency health and safety programs. The Agency will not assume responsibility for other government or contractor personnel.
OSHA has authority for enforcing compliance with Federal OSH regulations. Response actions are subject to OSHA inspections. Where State OSH laws exist, State inspections may take place. If the OSC discovers an infraction of safety requirements, the OSC must remind all site personnel and visitors of the requirements. Should the infraction continue, the OSC may call in OSHA or state OSH inspectors to review practices to ensure compliance.
7.8 Community Relations and Public Information
Community relations is a communication network between response officials and the community. The objectives of community relations are: to identify community concerns about the site; to encourage citizens to express concerns and provide information; to provide information to the community on health and environmental effects of the release and proposed response action; and to incorporate citizen comments and concerns (including those of the owners or operators) into the decision-making process.
Community relations activities will be important at Federal-lead UST corrective action sites because a major public health or environmental emergency exists. However, the time and extent of Federal involvement may no warrant complex community relations plans. The EPA's Community Relations Policy (May 1983) and Community Relations in Superfund: A Handbook (March 1986) can be used as applicable guidance for developing and implementing community relations activities. Although no specific activities are currently required at Federal-lead UST corrective actions, a community relations profile should be prepared for any action that lasts longer than five days. The profile should provide notice to owners/operators that the record is available for review. The profile explains how program and community relations staff intend to plan for and implement community relations activities at the site. It should contain a brief outline of the nature of community concerns, the key site issues, the objectives of community relations activities, and the communications activities considered for the site.
Some petroleum releases may require short-term corrective action lasting no longer than a few days. These kinds of actions may not involve substantial community relations planning because of the nature of the emergency and the quick response time required. At these sites, the focus of community relations is to provide information about the site and its risks to the community; information can be channeled through the media and local officials.
7.9 Record-Keeping Requirements
OSCs must ensure that they document and record all decisions and determinations they make prior to and during responses. OSCs must also include in the files any significant comments received from the owners/operators and their response to these comments. Structured site and Regional files are the sole repositories for site records. Care must be taken to ensure their completeness and long-term security. Both site management and financial management records are critical when cost recovery is involved. Complete and precise OSC records of oral and written communication with owners and operators, contractors, and participating Federal, State, and local agencies must be maintained should litigation arise at some later time.
Prior to the initiation of an UST response (when time allows), the OSC must maintain documentation regarding decisions and determinations relating to issues such as:
- The appropriateness of a Federal-lead UST corrective
- Contact with, and comments received from, the owner or
- Contact with, and comments received from, the State;
- Planning response actions;
- Developing contractual arrangements; and
- Complying with relevant environmental statutes.
During the course of a LUST Trust Fund-financed corrective action, the OSC is responsible for generating and maintaining site-specific documents such as action memoranda and daily and periodic cost control reports. It is critical that the OSC maintain a log of on-site activities and record all communications with the contractor, the owners or operators, and participating Federal, State, and local agencies. The Removal Cost Management Manual outlines the OSC's cost control record-keeping responsibilities. The ERCS Contract User's Manual and the TAT Contract User's Manual prescribe guidance for contractor-related record-keeping. Any cost control record-keeping requirements in conjunction with Federal, State, and local agencies may be prescribed as necessary.
7.10 Reporting Requirements
The OSC is responsible for documenting and reporting all response activities taken at a site. Reporting requirements include preparing and submitting to ERD a series of POLREPs and a final UST response report. POLREPs consist of initial, progress, and final reports. This section provides guidance on when the various reports should be submitted and the types of information each report should contain. All site information developed by the OSC must be made available to the Regional UST Coordinator, who will coordinated with the State to ensure that an effective, final resolution to a release will be accomplished by the State.
POLREPs provide factual operational data surrounding the incident and a current accounting of the total funds allocated in an incident. POLREPs should also detail measures to ensure that the affected community is properly and fully informed of all response activities. The Regions should bear in mind that POLREPs are a method of alerting Headquarters that critical events may be pending and that requests/action are about to be initiated. However, all requests for Headquarters decisions must be formally submitted in accordance with Section 4.0 of this guidance. To properly assist Headquarters management, routine POLREPs are sent to ERD at (202) 755-2155 (Telefax), 710-822-9269 (TWX) or EPA 5511 (E-Mail).
The OSC should prepare and send to Headquarters and the Regional UST Coordinator an initial POLREP for each new Federal-lead UST corrective action. This report should give the start date, describe the incident (including the outcome of any site evaluation), give the status of actions (including enforcement), and describe future plans.
Routine progress reports should be submitted to ERD and the Regional UST Coordinator a minimum of once a week and daily, where practicable, when events are rapidly occurring. Progress POLREPs should identify the following:
- Situation — present status of ongoing response
- Actions Taken — activities undertaken since the last
- Future Plans — planned actions by the OSC;
- Project Costs — estimated funds obligated thus far, including
a breakdown of the cost categories as noted in the following
Extramural Current Ceiling Obligations To Date Cleanup contractors $20,000 $10,000 TAT 5,000 2,000 15% Contingency 3,750 N/A Intramural (both HQ and Region) Direct 3,000 1,500 Indirect (estimate based on provisional rates) 6,000 3,000 TOTAL PROJECT CEILING $37,750 $16,500
Any other pertinent information such as status of efforts to obtain cleanup by responsible parties.
Also, POLREPs should be provided to ERD and Regional UST Coordinator on all major unanticipated developments of interest at approved corrective actions (e.g., fires, explosions, and all accidents even if no damage or injury has been caused) not included in other progress reports. In addition to reporting incidents to ERD via POLREPs, a corrective action accident report (see Appendix F) should also be completed and submitted to ERD. This form was developed to provide more detailed documentation of circumstances surrounding accidents during the course of response actions. The information it contains is vital should litigation occur.
When a Federal-lead UST corrective action has been completed, a final POLREP (e.g., POLREP #15 and FINAL) should be submitted that describes the final actions taken at the release, results achieved, detailed final costs and date of completion, the demobilization data, and future actions planned and who will perform them.
Within 60 days after the conclusion of a Federal-lead UST corrective action, the OSC should prepare and submit to ERD a final UST report. It is necessary that ERD have these final UST reports on hand to respond to inquiries from the public, Congress, the Office of the Inspector General, and the General Accounting Office.
The final UST response report is a complete report on the response operation and the action taken. It should include a summary of events, an analysis of the effectiveness of corrective actions, a list of problems affecting the response, if applicable, and OSC recommendations. The completion date is the date on which any wastes are shipped for ultimate disposal or the site is demobilized, whichever is later. Temporary demobilization and temporary on-site storage are not considered completions unless they are the final actions approved (i.e., off-site disposal is not approved).
7.11 Post-Corrective Action Site Control
The State or local government must assume responsibility for operations and maintenance performance and costs after the system is proven to be operational. Examples of operations and maintenance at a corrective action include running pumps or operating a ventilation system.
If the State recommends response options involving operations and maintenance in the oral request (see Appendix B) or State request letter (see Appendix C), the State must explain how it intends to assume resource and financial responsibility for these options. Some States may have cooperative agreements that provide for operations and maintenance; the Regional MUST Coordinator should be contacted for this information, as detailed in Section 4.4.
Some situations may require operations and maintenance as part of all response options. If no owner or operator agrees to assume responsibility, the State must take over these actions under an UST cooperative agreement.
OSWER DIRECTIVE 9360.0-16a