The purpose of this fact sheet is to identify the intent of a Record of Decision (ROD) within the CERCLA remediation process, to identify the various components of the ROD, to describe the post-ROD significant changes process, and to identify a helpful EPA guidance document.

Background and Purpose of a ROD

The Record of Decision (ROD) documents the selected remedy for a site or an operable unit, as well as serving to certify that the remedy selection process was carried out in accordance with CERCLA. The ROD is a technical document that outlines the engineering components and remediation goals of the selected remedy, providing the public a consolidated source of information about the site including the rationale behind the selected remedy.

For sites under its jurisdiction, a Federal agency has the lead responsibility for preparing the draft ROD. After the draft ROD is prepared, taking into consideration new information and comments received during the Propose Plan public comment period, it is submitted to EPA (and, where designated in the IAG, the State) for written approval. The Regional or Assistant Administrators' signature constitutes final EPA adoption of the ROD. Upon signature, the Federal agency will publish a notice of availability and make the ROD available to the public before beginning the response action.

Elements of the ROD

There are three basic components of a ROD: a Declaration, a Decision Summary and a Responsiveness Summary. Below is a brief discussion of each component.

The Declaration serves as the abstract for the key information contained in the ROD. This section provides a brief description of the selected remedy and a formal statement explaining that the selected remedy complies with CERCLA and is consistent, to the extent practical, with the National Contingency Plan (NCP). Also, this section contains the appropriate signatures. Typically the federal facility and the EPA will co-sign the ROD. The state may also be a signatory to the ROD. The major elements of the Declaration are the site name and location, a statement of basis and purpose, a statement of the existence of an imminent and substantial endangerment to public health, welfare or the environment, a description of the selected remedy, statutory determinations, and appropriate signatures.

The Decision Summary is the second and main component of the ROD. The Decision Summary should provide an overview of the site-specific factors and analysis that led to selection of the remedy for the site or operable unit. In general, this section should include the site history including the official site name, location, description, enforcement activities, etc. This section should also identify public participation requirements of CERCLA and identify how they were addressed. The section should discuss how the operable units or response action fits into the overall site cleanup strategy by addressing the principal threats posed by the conditions at the site.

Include in the Decision Summary an overview of the site contamination and the actual and potential routes of exposure posed by the site. Identify known or suspected sources of contamination, types of contamination and affected media. Identify all known current risks and potential routes of human and environmental exposure. A brief summary of the information developed in the risk assessment should be presented in the ROD. It is suggested that text, tables and graphics be used to explain risk in plain-language terms. Human health and environmental risks both should be addressed.

Within the summary, describe all the alternatives in a concise manner and address how they could be employed to remediate the site. Then summarize the alternatives with respect to the nine CERCLA criteria. This discussion should summarize the comparative analysis of the alternatives presented in the detailed analysis section of the RI/FS report. The major objective of this section is to evaluate the relative performance of the alternatives with respect to the criteria so that the advantages and disadvantages associated with each remedy option can be clearly delineated.

The remainder of the Decision Summary focuses on the selected remedy. This portion should identify and summarize the major treatment options of the selected remedy, as well as engineering controls or institutional controls that will be part of the remedy.

The last part of the Decision Summary is a statutory determination. Once the selected remedy has been identified, the ROD Decision Summary should conclude with a description of how the selected remedy meets the statutory requirements of CERCLA section 121. Thus the remedy must be protective of human health and the environment, comply with ARARs, be cost-effective, utilize permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable, and satisfy the preference for treatment or provide an explanation why this preference is not satisfied.

When there are significant changes from the Proposed Plan, these changes should also be addressed in the Decision Summary in order to fulfill the requirements of CERCLA section 117(b). The ROD should document and discuss any significant changes made to the selected remedy from the time the Proposed Plan and the RI/FS report were released for public comment to the final selection of the remedy. A section of the ROD should identify the preferred alternative from the Proposed Plan and should indicate whether any significant changes were made. If significant changes were made, the reasons for those changes should be explained. If the changes warranted a new Proposed Plan and reopening of the public comment period, these activities should also be summarized in the Decision Summary section of the ROD.

The Responsiveness Summary is the third component of the ROD. The summary should be a concise and complete summary of significant comments received from the public during the comment period. The summary should be accompanied by responses to comments. The responses should be clear, concise and accurate. This summary serves several purposes. First, it provides the decisions makers with information concerning the public preferences regarding the remedial action and the site. Second, it demonstrates that the public was involved in the decision making process at the site. Lastly, it allows the lead agency to respond to comments on the record.

Elements of a No Further Action (NFA) ROD

When preparing a NFA ROD, it should be noted that there will be some deviation from the elements identified above. Typically, the NFA ROD Declaration statement will not include an assessment of the site or the discussion on the statutory determinations. Instead, a brief statement should be made noting that no remedial action is necessary to ensure protection of human health or the environment. It should also be noted whether a five-year review is required. Within the Decision Summary, there should be a summary of site risks that provides the primary basis for the "no action" decision. This discussion should support the determination that no further is necessary to protect human health and the environment. It should be noted that the ROD should not include the Description of Alternatives or Summary of the Comparative Analysis of Alternatives sections. If alternatives were developed in the FS, the RI/FS report should be referenced.

Post-ROD Significant Changes

Determining the proper course of action when changes arise after the signing of the ROD is a two phase process. The first phase requires a determination by the lead agency that "formal consideration of the comments is warranted". Comments from other agencies or the public should be considered by the lead agency when each of the following criteria are met:

The comments contain significant information;

The information is not contained elsewhere in the administrative record file;

The information could not have been submitted during the public comments period; and

The information substantially supports the need to significantly alter the response action.

If a determination is made that the comment warrants formal consideration, the next step is to determine if the comment is a non-significant comment, a significant comment, or a fundamental change.

Non-significant comments are those comments that do not affect the scope, cost or performance of the remedy. The lead agency need not prepare an Explanation of Significant Differences (ESD) for non-significant or minor changes. However, these changes should be documented in the post-decision document file. The documentation of non-significant difference should not be part of the administrative record file for the ROD.

Significant changes to a component of the remedy generally are incremental changes in the scope, performance or cost to the selected remedy for the site. These changes do not fundamentally alter the overall approach intended by the remedy. In this case an ESD should be prepared. The ESD represents only a notice of change and is not a formal opportunity for public comments since the overall remedy is not being reconsidered. Pre-design, design and construction activities can take place during the preparation of the ESD.

The last type of changes are fundamental changes to the ROD. In a few cases, new information is submitted that causes the lead agency to reconsider the remedial action selected for the site. When fundamental changes (such as a change from incineration to biological treatment) are made to a remedy, the lead agency should repeat the ROD process in accordance with the CERCLA section 117 requirements by issuing a revised Proposed Plan and an amended ROD.

Summary

The ROD is essentially the summary of the CERCLA study and investigation phase of the CERCLA process. It serves to document the selected remedy for a site or an operable unit as well as serving to certify that the remedy selection process was carried out in accordance with CERCLA. Also, all Applicable or Relevant and Appropriate Requirements (ARARs) are frozen when the ROD is signed.

There are three major components to the ROD; a Declaration, a Decision Summary and a Responsiveness Summary. After a draft ROD is prepared by the federal agency, it is submitted to EPA (and in some cases the state) for signature. Once signed, the lead agency publishes a notice of avaibility in the local newspaper and places the ROD in the administrative record file as required by the NCP.

There may be instances when there are challenges to the ROD. If this should occur, first the lead Federal agency must make a determination as to whether or not the new comments warrant "formal consideration". If a determination is made that the comments do indeed warrant "formal consideration", then the process can continue. There are three types of post-ROD changes that may occur; a non-significant comment, a significant comment, or a fundamental change. Only fundamental changes to the selected remedy will warrant reopening of the ROD.

For more detailed information on the preparation of the Record of Decision, the reader is directed to the EPA Guidance document EPA/540/G-89/007, Guidance on Preparing Superfund Decision Documents, July 1989.