The purpose of this Superfund Reform is to encourage appropriate changes to remediesselected in existing Superfund Records of Decision (RODs). These updates are intended to bringpast decisions into line with the current state of knowledge with respect to remediation scienceand technology, and by doing so, improve the cost effectiveness of site remediation whileensuring reliable short and long term protection of human health and the environment. Remedychanges will be completed in accordance with existing regulations and guidance, which call for amemorandum to the file, an Explanation of Significant Differences, or a ROD amendment, asappropriate for the significance of the change. Cleanup levels are not expected to change absenta showing that remediation levels are unattainable.

Background
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At the inception of the Superfund program in 1980, few technologies existed for thecharacterization and cleanup of hazardous waste sites, and relatively little was known regardingthe nature of subsurface contamination. Since that time, numerous technical advances have beenmade which greatly improve our ability to characterize and remediate hazardous waste sites. Inaddition, analysis of EPA and State program experience has led to a greater understanding of thedifficulties involved in remediating certain types of contamination problems.

The Agency recognizes that some remedy decisions made at Superfund sites in the pastshould be modified to bring those decisions up to date with the current state of the science. Thebest example of how knowledge and expectations have evolved in the Superfund program is thecase of contaminated ground water. At the outset of the program, it was anticipated that groundwater contamination would migrate in a relatively simple and predictable manner, and thatremediation using pumping wells coupled with above-ground treatment would be straightforwardand rapid. Today, we realize that many of the contaminants present in ground water atSuperfund sites were derived from "dense, nonaqueous phase liquids" (DNAPLs) such astrichloroethylene (TCE). Such contaminants behave in a manner that was not widely understoodby the technical community until the late 1980s. The migration, fate, and cleanup of DNAPLcontamination in ground water is still the subject of considerable research.

The Superfund program has evolved in response to scientific advancement andremediation experience. For example, the 1993 "Guidance for the Evaluation of the TechnicalImpracticability of Ground water Restoration" followed the completion of an EPA study of theefficacy of "pump and treat" cleanups at Superfund and other contamination sites. This guidancerecognizes that numerous challenges may be faced cleaning up contaminated ground water, andprovides advice on how to demonstrate that required cleanup levels should be waived in favor ofa protective, but less-stringent cleanup approach. The need for flexibility in the implementationof ground water remedies will be discussed in detail in the forthcoming EPA guidance"Presumptive Response Strategy and Ex-Situ Treatment Technologies for Contaminated GroundWater at CERCLA Sites," which should be available in late 1996.

Modification of a ROD is not a new concept in the Superfund. However, the need tomodify RODs to keep up to date with new technologies has grown as the complexity ofSuperfund cleanups has become more apparent and national concern regarding the costs of suchcleanups has increased.

Objective
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This reform effort encourages the Regions to take a close look at, and modify asappropriate, past remedy decisions where those decisions are substantially out of date with thecurrent state of knowledge in remediation science and technology, and thus are not as effectivefrom a technical or cost perspective as they could be.

This initiative does not signal any changes in Agency policies regarding site cleanup, including policies based on the Superfund statute regarding remedy selection, treatment ofprincipal threats, preference for permanence, establishment of cleanup levels, waivers of suchcleanup levels, or the degree to which remedies must protect human health and the environment. It is instead an effort to promote the use of the best science and most appropriate technologies atSuperfund sites.

Implementation
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EPA is prepared to review and update existing RODs where appropriate. Eligibility forthis reform effort is open to Fund, other federal agency-lead, and potentially responsible party(PRP)-lead sites. Candidate sites for remedy updates may be identified by EPA or otherinterested parties.

Modification of RODs generally is appropriate where significant new information hasbecome available (i.e., the information was not available at the time the ROD was signed) thatsubstantially supports the need to alter the remedy. This approach is in keeping with the generalexpectation that updates will be based on program experience and new scientificinformation.

Types of Remedy Updates Anticipated

We expect that the primary focus of these updates will be ground water sites, as thescience of ground water remediation has changed dramatically since the inception of theSuperfund program. Nonetheless, remedy updates may be appropriate at other types of sites aswell. We expect that remedy updates will consist of three principal types:

• Changes in the remediation technology employed, where a different technology would result in a more cost effective cleanup;
• Modification of the remediation objectives due to physical limitations posed by site conditions or the nature of the contamination; and
• Modification of the monitoring program to reduce sampling, analysis, and reporting requirements, where appropriate.

These types of updates are discussed below in greater detail, particularly as they relate toground water remedies:

• Changes in the Remediation Technology:  Sites where new information indicates thatanother remediation technology would perform significantly better than the selected remedy forequivalent cost, or perform as well as the selected remedy for significantly lower cost, would begood candidates for a remedy update. Note that there should be sufficient information availableto determine that such a technology or approach will perform as expected, given the conditions atthe site. Given the potential risks of technology failure and its consequent cost, only proventechnologies, or innovative technologies with well-understood performance capabilities, shouldbe considered for remedy updates.

• Remediation Objectives Reconsidered:  This category includes sites where informationgathered during remedial design or remedial action indicates that achieving the selected cleanuplevels (e.g., Maximum Contaminant Levels) is not technically practicable from an engineeringperspective. An example of such a site would be one where DNAPLs have been directlyidentified or reliably inferred from newly-acquired evidence, and where presence of the DNAPLwill critically limit the ability to achieve cleanup levels. This scenario also might include caseswhere the physical attributes of the site (e.g., very complex hydrology) will prevent the selectedremedy from attaining the required cleanup levels in a reasonable time frame.

  Another type of site that might be considered for an update under this general category isa site where an existing ground water remediation system has reduced contaminant levels, butcontaminant recovery efficiency is so low that a concentration "plateau" has effectively beenreached. EPA expects that reasonable efforts will have been made to refine any existingremediation systems, so that the loss of contaminant recovery efficiency can be attributed withrelative confidence to physical limitations of the site, and not to inadequacy of remediationsystem design or its operation. A determination regarding contaminant recovery efficiency maybe made over portions of sites, targeting for review and update only those areas of the site whereremediation has become demonstrably inefficient. For further information on definingconcentration "plateaus," see "Statistical Methods for Evaluating Cleanup Standards: Volume II,Ground Water" (EPA Publication 230-R-92-014, 1992).

  Where such a determination is made (i.e., that further active remediation with a giventechnology is no longer practicable), alternative remedy options include: 1) use of a differentremediation technology or approach to enhance recovery rates; 2) use of natural attenuation tocomplete the cleanup, but over a somewhat longer time frame; and 3) recognition that completecleanup is not technically practicable using either of the first two options, and that modificationof the cleanup levels may be required (e.g., ARAR waiver or alternate concentration limits). Forfurther information on waivers of cleanup levels, see "Guidance for Evaluating the TechnicalImpracticability of Ground Water Restoration," OSWER Publication No. 9234.2-25 (September1993).

  Use of natural attenuation to complete ground water cleanup may be appropriate wheresite characterization and remedy performance data indicate that required cleanup levels will beattained within a reasonable time frame through biodegradation, dispersion, dilution, adsorption,or other natural processes. The "reasonableness" of the time frame to achieve cleanup must bedetermined on a site-specific basis, considering such factors as use and value of the resource; theurgency of the need for the resource; the availability of other water supplies in the area; and theability to prevent human exposures and impacts to environmental receptors. State and local inputon these decisions therefore will be critical.

• Reduced Monitoring Data Needs:  Sites where the ground water monitoring programcould be streamlined without compromising the effectiveness or protectiveness of the remedyalso may be considered for review. For example, sites undergoing long-term remedial actionssuch as pump and treat may, after a period of time, require less intensive monitoring thanoriginally called for in the ROD or other work plan document. Such a determination may bemade after the remediation system has been operational and functional for a period of timesufficient to determine whether: 1) the remediation system is achieving the degree ofcontaminant plume control sought; and 2) there have been no short-term fluctuations incontaminant concentrations or other phenomena that would justify the continuation of frequentsampling.

  Where these conditions are met, it may be appropriate to consider streamlining theground water monitoring program. Such streamlining might, for example, reduce samplingfrequency from quarterly to semiannually or annually with no significant change in data qualityor monitoring effectiveness. Similarly, the number of parameters tested for in each sample alsomay be reduced in certain cases. In other cases, specific monitoring wells may be eliminatedfrom the program entirely. For example, wells formerly located in the contaminated plume whichnow comply with cleanup levels, or wells that are sufficiently close to other monitoring pointsthat their omission from the sampling program would not adversely impact overall data qualitymay be eliminated from the monitoring program.

  Factors to consider when contemplating changes to the monitoring program includeproximity to downgradient receptors (e.g., supply wells), the relative speed with which groundwater flows in the affected aquifer, and whether large seasonal changes occur in the hydrologicsystem. And, as virtually all ground water sites have some type of monitoring program, regionalreview and modification of monitoring programs should focus on those sites where such changeswill produce significant cost savings. Changes to a ground water monitoring program often willnot constitute a significant change to the implementation of the remedy. Where this is the case,such changes may be documented through a memorandum to the post decision document file orthrough modification of the specific document(s) governing the monitoring plan, as appropriate.

  These examples of updates, while not exhaustive, are meant to be representative of thetypes of sites where it may be appropriate to modify the remedy. In cases where a change inremedial technology or approach is proposed, remedy updates should be based on site-specificinformation gathered or developed after the ROD was signed.

Remedy Updates Process

Each Region should set up a process for reviewing requests for remedy updates submitted by EPA staff or other parties. The process may consist of three phases:

1. Identification and prioritization of RODs for review;
   
   
2. Technical review (to determine whether changes to the remedy are warranted); and
   
   
3. Implementation of the remedy update (changes documented in the post-ROD file, an Explanation of Significant Differences, or a ROD Amendment; or where the remedy selected ROD is not altered, by revision of a work plan or other relevant document).

Prioritization.  EPA will consider and evaluate potential remedy updates for Fund, otherfederal agency, and responsible party-lead sites. Requests for review of candidate RODs may besent to the Waste Management Division Director or the Remedial Project Manager assigned tothe site. To ensure that the Region's rationale for prioritizing remedy reviews is clear andequitable, all such requests should be carefully tracked. During the prioritization phase, theRegion shall assess the type of modification that may be called for, the resources needed toconduct the review and update, and the potential cost savings. Review and consideration ofpotential remedy updates should not, however, result in any delays in the completion of workproducts or other remediation activities required by the existing ROD and enforcementinstruments (UAOs/CDs). Work stoppage is not permitted except as authorized in theenforcement instrument for PRP-lead sites.

Review and modification of RODs can be resource intensive. We therefore encouragethe Regions to establish priorities for ROD reviews and updates that balance the demands of thisreform effort with available Regional resources and the need to meet other program targets. It isrecommended that in setting priorities among updates, the Regions should evaluate the potentialcost savings of the update. Furthermore, when factoring cost savings into priority-setting forreviews, Regions should consider both the gross cost savings estimated for the update (favoringlarge sites with potentially large cost savings), as well as the proportion of total remedy costwhich the savings would represent (fostering update opportunities for smaller sites with largeproportionate reductions in cost).

Estimation of the amount of cost savings expected for the proposed remedy changeshould include consideration of the resources required to review and update the remedy decision,as well as the resources required to implement the change in the remedy itself. As Superfunddecisions have evolved with program experience, we anticipate that older RODs may be the morelikely candidates for updating than more recent RODs. However, another factor that can affectremedy update cost savings is the stage of a remedy's construction. The costs of implementing achange in remedial technology may be much lower, for example, if the change is made duringdesign as opposed to during or after construction. When estimating cost savings associated witha potential remedy update, the Region therefore should consider whether a given remedy is stillin the design phase, or whether construction is underway or already completed. In addition, theimpact of any delays to the cleanup schedule should be considered. Additionally, the Regionsshould consider the administrative costs of modifying a remedy, which may include preparationof an ESD or ROD amendment, responding to the concerns of parties affected by the remedychange, and modifying or renegotiating UAOs or consent decrees.

Technical Review.  During the review phase, Regions will review the technicalinformation supporting the need to alter the response action. This should include detailedsite-specific information related to how the selected remedy has performed or can be expected toperform. This information may be augmented by non-site-specific information such as publishedreports regarding the efficacy of a particular remediation method under conditions similar tothose found at the site, or other widely-accepted technical information that was not available atthe time the ROD was signed. The Agency expects that PRPs and federal agencies requestingremedy reviews will take responsibility for collecting and assembling relevant information in amanner that supports an efficient review process. EPA will assume this responsibility forFund-lead sites.

Implementation.  Sites that are selected for update would then pass on to the third phase,implementation. Note that this reform initiative does not in any way change the manner in whichremedies are modified, as specified in the March 8, 1990 National Contingency Plan (NCP). Where modifications to a ROD would represent a significant, but not fundamental, change fromthe selected remedy, EPA (or the lead agency) is required to publish an Explanation ofSignificant Difference (ESD), as outlined in NCP §300.435(c)(2)(i). Where a RODmodification would result in a fundamental difference from the selected remedy, a RODAmendment should be proposed, as discussed in NCP §300.435(c)(2)(ii). Minor, ornon-significant, changes to a remedy must be recorded and explained in the post decisiondocument file. Remedy changes that do not alter the remedy selected in the ROD (e.g., someground water monitoring program changes) may be documented by revision of the work plan orother relevant document.

Community preferences are particularly important regarding any proposed changes to theremedy. Regions must ensure that communities are involved in the remedy update process andshould provide an opportunity for public comment whenever the change will result in a RODamendment. Public notice of modification of a ROD will be carried out in accordance with theNCP and existing guidance. Where an ESD is used, EPA (or the lead agency) generallyprovides a summary of the ESD in a local newspaper, and makes the ESD and supportinginformation available to the public in the Administrative Record and in the site's informationrepository (NCP §300.825(a)(2)). We also encourage the Regions or the lead agency to solicitpublic comment on ESDs where appropriate. Public involvement for ROD amendments iscarried out in the same manner as for a ROD, including requirements for public comment,response to comments, and update of the Administrative Record (refer to OSWER Directive9355.3-02). For minor, or non-significant changes, the public may access documentation of thechanges in the post decision document file in the Administrative Record. If the lead agencychooses, it also may publish an optional Fact Sheet describing the minor changes to the ROD.

Further guidance on what may constitute a minor, significant, or fundamental change to aROD can be found in the Preamble to the above sections of the NCP, and in OSWER guidancedocuments "Interim Final Guidance on Preparing Superfund Decision Documents" (Directive9355.3-02, October 1989) and "Guide to Addressing Pre-ROD and Post-ROD Changes," (Publication No. 9355.3-02FS-4, April 1991).

State, Native American Tribe, or Supporting Agency Role

States play a role in the modification of remedy decisions. Both CERCLA §121(f) andthe Model CERCLA Consent Decree (which forms the basis for most consent decrees) providethat the States be given the opportunity to review and comment on specified steps in remedyselection. Further, the Model Consent Decree requires that the State be given a reasonableopportunity to review and comment on any proposed modifications. Agreements between EPAand a State, including contracts, may require modification following a change to a remedy. Further information regarding the role of States and supporting agencies in the remedymodification process can be found in the "Interim Final Guidance on Preparing SuperfundDecision Documents," OSWER Directive 9335.3-02 (October 1989).

Native American Tribes are afforded substantially the same treatment as States withrespect to certain provisions of CERCLA (see CERCLA §126; NCP §300.5). A tribe that isfederally-recognized, has a governing body that is currently performing governmental functionsregarding environmental protection, and has jurisdiction over a Superfund site can be treatedsubstantially the same as states under CERCLA §104 (see NCP §300.515). For moreinformation, please contact Dave Evans ( Director; State, Tribal, and Site Identification Center),at (703)-603-8885.

Modifications of RD/RA Consent Decrees

When a modified remedy is to be (or is being) implemented by PRPs pursuant to aRemedial Design/Remedial Action (RD/RA) consent decree, modification of the consent decreemay be necessary. Most remedy updates will require modification of the Statement of Work(SOW) which provides detail regarding implementation of the ROD. Most consent decreesfollow the Model Consent Decree which provides that any material modification to the Statementof Work for the remedy requires the written approval of the United States, the settling PRPs, andthe court which entered the decree. Where remedy updates adopted pursuant to thisadministrative reform proposal result in cost savings to the settling defendants, it is notanticipated that the Regions will have difficulty obtaining the cooperation (and assistance) ofPRPs in preparing the documents required to obtain court approval of the modified consentdecree.

Where the modified remedy requires a nonmaterial change in the SOW, the ModelConsent Decree language provides that the modification can be made upon written agreementbetween EPA (after providing the State a reasonable opportunity to review and comment on themodification) and the settling defendants. If the remedy update does not require a change to theSOW, the Model Consent Decree modification provision does not require approval of the settlingparties. The Department of Justice should be consulted as soon as the Region believes thatmodification of the consent decree would be required to accommodate a remedy change.

Headquarters Consultation

Current policies regarding consultation with Headquarters on certain remedy selectionissues apply to this initiative. Current consultation policies are found in the memorandumentitled, "Twenty Fifth Remedy Delegation Report - FY 1994," signed by Richard J. Guimond,October 8, 1993. However, in the future the Regions should refer to any relevant Headquartersmemoranda updating these consultation guidelines.

Conclusion
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In closing, let me state that the success of this Superfund Reform will be contingent inpart on how well the results of these reviews and updates are communicated among Regional andHeadquarters offices. Progress reports, including the number and type of remedies reviewed, andthe number and nature of the remedies updated, will be prepared periodically by my staff withyour involvement. Copies of these reports will be provided to you so that you may be aware ofnational trends in this reform effort. We expect to hold periodic conference calls to coordinatethe national implementation of this Superfund reform and to obtain results on the progress inreviewing and updating RODs.

If you have any questions or wish to discuss these matters further, please contact PeterFeldman ((703) 603-8768) or Bruce Means ((703) 603-8815) of the Office of Emergency andRemedial Response, Karen Harrison of the Office of Enforcement and Compliance Assurance((202) 564-5121), or Brian Grant of the Office of General Counsel ((202) 260-6512).

cc:	Elliott Laws, OSWER Tim Fields, OSWER Jim Woolford, FFRRO Earl Salo, OGC Craig Hooks, FFEO Liz Cotsworth, OSW Bruce Gelber, DOJ Superfund Managers

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