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Notice of Availability of Final Draft Guidance for Developing Superfund Memoranda of Agreement (MOA) Language Concerning State Voluntary Cleanup Programs
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: September 9, 1997 (Volume 62, Number 174)]
[Notices]
[Page 47495-47506]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09se97-98]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5890-5]
Notice of Availability of Final Draft Guidance for Developing
Superfund Memoranda of Agreement (MOA) Language Concerning State
Voluntary Cleanup Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of availability and request for comments.
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SUMMARY: This notice announces the availability of the document ``Final
Draft Guidance for Developing Superfund Memoranda of Agreement (MOA)
Language Concerning State Voluntary Cleanup Programs'' and the Agency's
request for stakeholder comment on both aspects of the document, i.e.,
the final draft guidance and the site screening or designation process.
In this document, the U.S. Environmental Protection Agency is
encouraging its Regions to develop partnerships with States by
negotiating MOAs that delineate roles and responsibilities for the
cleanup of hazardous substance sites, such as Brownfields, that do not
pose the type of risk usually addressed by Federal Superfund National
Priorities List (NPL) cleanups. These MOAs are designed to facilitate
the expeditious cleanup of these lower risk sites under State voluntary
cleanup programs. This document sets out baseline criteria that EPA
will use to evaluate State voluntary cleanup programs. This evaluation
will be part of the negotiation of an MOA, or work planning document.
As explained more fully in the draft guidance, for those sites included
within the scope of the MOA, EPA will not exercise cost recovery
authority and does not generally anticipate taking removal or remedial
actions under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (CERCLA or Superfund) at these sites except
under the limited circumstances detailed in the draft guidance.
DATES: Written comments must be postmarked or submitted by hand or
electronically by October 24, 1997. Due to the previous stakeholder
discussions on this guidance, including the February 27, 1997 open
meeting noticed in the February 13, 1997 Federal Register, this comment
period is not expected to be extended, and thus, this is likely to be
the final opportunity for public comment on this guidance.
ADDRESSES: To submit comments, the public must send an original and two
copies to Docket Number SFMOA, located at the Superfund Docket. The
official address is: U.S. EPA, Superfund Docket (MC5202G), 401 M
Street, N.W., Washington, D.C. 20460. Hand-delivered comments should be
taken to: U.S. EPA, Superfund Docket, 1235 Jefferson Davis Highway,
Crystal Gateway 1, First Floor, Arlington, VA 22202. (Also, see the
section under ``Supplementary Information'' regarding the paperless
office effort for submitting public comments.) The Superfund Docket is
open for public inspection and copying of supporting information from
9:00 a.m.-4:00 p.m., Eastern Time,
[[Page 47496]]
except for Federal holidays. The public must make an appointment to
review docket materials by calling 703-603-9232. The public may copy a
maximum of 100 pages from any regulatory document at no cost.
Additional copies cost $0.15 per page.
FOR FURTHER INFORMATION CONTACT: Linda Garczynski, Director, Outreach
and Special Projects Staff, Office of Solid Waste and Emergency
Response, U.S. Environmental Protection Agency, Mail Stop 5101, 401 M
Street, N.W., Washington, D.C. 20460, phone: (202) 260-4039, or Linda
Boornazian, Policy and Program Evaluation Division, Office of
Enforcement and Compliance Assurance, U.S. Environmental Protection
Agency, Mail Stop 2273A, 401 M Street, N.W., Washington, D.C. 20460,
phone: (202) 564-5144.
AVAILABILITY OF DOCUMENT: The Final Draft Guidance for Developing
Superfund Memoranda of Agreement (MOA) Language Concerning State
Voluntary Cleanup Programs follows this notice. In addition, the
document can be accessed electronically through the U.S. Environmental
Protection Agency's homepage at http://www.epa.gov/brownfields.
Background INFORMATION: States are developing voluntary cleanup
programs to speed up the cleanup of non-National Priorities List sites,
which, generally speaking, pose a lower risk than those sites listed on
the National Priorities List (NPL). These voluntary cleanup programs
pose an alternative to the conventional CERCLA or State Superfund-like
enforcement approach to cleaning up contaminated sites. Through State
voluntary cleanup programs, site owners and developers identify and
clean up sites by using less extensive administrative procedures. The
site owners and developers may then obtain some relief from future
state liability for past contamination. This approach encourages
cleanup of sites, such as Brownfields, that might otherwise not be
cleaned up because of limited Federal and State resources.
In addition, financial and real estate sectors are sometimes
reluctant to support the redevelopment of brownfields and lower risk
sites because they are concerned about potential liability under
CERCLA. Some developers have also expressed concern that the
uncertainty that can arise from potentially overlapping Federal/State
cleanup authorities can become a disincentive to cleanup and
redevelopment of these sites. This guidance addresses this concern by
clarifying EPA and State roles and responsibilities, which helps reduce
such uncertainty and promotes the cleanup and redevelopment of lower
risk sites such as Brownfields. As of August 1997, eleven States and
EPA Regions have signed Memoranda of Agreement clarifying their
respective roles at certain sites being addressed under State voluntary
cleanup programs.
This draft guidance includes a draft site designation or screening
process and proposes that this new process be used in conjunction with
the guidance to designate sites as either Tier II (lower risk sites
that are eligible for inclusion within the scope of an MOA concerning a
State voluntary cleanup program) or Tier I (higher risk sites of the
type that historically have been listed on the National Priorities
List). Tier I sites are not eligible for inclusion within the scope of
an MOA concerning a State voluntary cleanup program.
The Agency is requesting comment on both the draft guidance and the
site designation or screening process. EPA would like to receive
comments of both a general nature, e.g., on the usefulness of the MOA
approach to clarifying roles and responsibilities; the feasibility and
ease of implementation of the site designation or screening process; as
well as specific suggestions as to how the guidance or site tiering
process could be improved. In particular, EPA would appreciate feedback
and comment in the following areas:
Draft Guidance
1. Does the final draft guidance represent an appropriate balance
among assuring protective site cleanups; the appropriate level of
State, Federal and community involvement at voluntary cleanup sites;
and, encouraging cleanup and redevelopment of these sites, particularly
in the following areas?
a. Universe of sites eligible for inclusion within scope of MOA
b. Criteria for evaluating State voluntary cleanup programs
c. Level of Federal involvement (including provision of technical
or financial assistance), if any, in State voluntary cleanup programs
d. Level of Federal involvement, if any, in specific sites being
addressed under State voluntary cleanup programs
e. Methods for determining the protectiveness of voluntary cleanups
at lower risk sites.
f. Role of the community in voluntary cleanups
Site Designation and Screening Process
2. What type and amount of information is needed at each stage in
the decision process to reach a Tier I or Tier II decision?
3. Are the screening steps in the best logical sequence?
4. If there are nearby populations or sensitive environments, how
could EPA ensure that private parties would evaluate them to account
for changes in land use in the near or long-term?
5. What information/tools (e.g., software) are currently available
to the public that would allow them to collect the requested
information?
6. What are the resource implications for stakeholders who use
these tools at each step of the process, i.e., how much is the
estimated cost (in dollars and time) of conducting each step of the
process?
7. Are there preferred alternative mechanisms for screening sites?
If so, please describe briefly.
SUPPLEMENTARY INFORMATION:
Paperless Office Effort
EPA is asking prospective commenters to voluntarily submit one
additional copy of their comments on labeled personal computer
diskettes in ASCII (TEXT) format or a word processing format that can
be converted to ACSII (TEXT). It is essential to specify on the disk
label the word processing software and version/edition as well as the
name of the commenter. This will allow EPA to convert the comments into
one of the word processing formats utilized by the Agency. Please use
mailing envelopes designed to physically protect the submitted
diskettes. EPA emphasizes that submission of comments on diskettes is
not mandatory, nor will it result in any advantage or disadvantage to
any commenter. Rather, EPA is experimenting with this procedure as an
attempt to expedite our internal review and response to comments. This
expedited procedure is in conjunction with the Agency's ``Paperless
Office'' campaign.
Dated: August 29, 1997.
Timothy Fields, Jr.,
Acting Assistant Administrator, Office of Solid Waste and Emergency
Response.
Steven A. Herman,
Assistant Administrator, Office of Enforcement and Compliance
Assurance.
Oswer Directive--------------------------------------------------------
Guidance for Developing Superfund Memoranda of Agreement (MOA) Language
Concerning State Voluntary Cleanup Programs
This document gives guidance to EPA staff on how to draft MOAs
with States on State voluntary cleanup programs. It is not a
regulation, and does not create legally binding obligations on any
person, including States and EPA. Whether or not EPA follows
[[Page 47497]]
the guidance in any particular case will depend on the
circumstances. EPA may change the guidance in the future.
I. Purpose
This guidance will assist the U.S. Environmental Protection
Agency's (EPA) Regions and States in developing or amending Memoranda
of Agreement (MOA) 1 regarding EPA/State relationships with
respect to sites being addressed by State voluntary cleanup programs.
Regions should use this guidance in determining whether to acknowledge
the adequacy of a State voluntary cleanup program through an MOA. For
those sites included within the scope of the MOA, Regions and States
can agree that EPA will not exercise cost recovery authority and does
not generally anticipate taking a removal or remedial action
2 at certain sites being addressed by a State's voluntary
cleanup program except under limited circumstances. The decision to
sign an MOA is discretionary upon the part of the Regional
Administrator.
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\1\ These MOAs are developed under the National Contingency Plan
definition of a Superfund Memorandum of Agreement (SMOA), which is a
nonbinding, written document executed by an EPA Regional
Administrator and the head of a State agency to establish the nature
and extent of EPA and State interaction during the removal, pre-
remedial, remedial, and/or enforcement response process. The SMOA
generally defines roles and responsibilities; it is not a site-
specific document although attachments may address specific sites.
\2\ EPA may obtain access, conduct site assessment or
information gathering as necessary to determine whether an imminent
and substantial endangerment exists.
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II. Introduction
State Voluntary Cleanup Programs
A State voluntary cleanup program is an alternative to the
conventional CERCLA or State Superfund-like enforcement approach to
cleaning up contaminated sites. States are developing voluntary cleanup
programs to speed up the cleanup of non-National Priorities List sites,
which, generally speaking, pose a lower risk than those sites listed on
the National Priorities List (NPL). 3 These voluntary
cleanup programs are designed to achieve results that are acceptable to
the State in terms of costs and protection of the environment and human
health.
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\3\ The NPL means the list, compiled by EPA pursuant to CERCLA
section 105, of uncontrolled hazardous substance releases in the
United States that are priorities for long-term remedial evaluation
and response.
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Many States have established voluntary cleanup programs. The key
ingredients of a documented State voluntary cleanup program include
established authority, investigative and remedial procedures, cleanup
targets appropriate to sites, State sign-off conditions and procedures,
and liability provisions. These voluntary cleanup programs allow
volunteers, such as site owners and developers, to identify and clean
up sites, to use less extensive administrative procedures, and to
obtain some relief from future state liability for past contamination.
These sites might otherwise not be cleaned up because of their
relatively low priority, and because these sites are too numerous for
other State or Federal cleanup programs to address within a reasonable
time frame.
State-established voluntary cleanup programs allow private parties
to initiate and proceed with a cleanup with varying levels of State
oversight and enforcement conditions. This guidance is intended to be
flexible enough to accommodate variability among State voluntary
cleanup programs; however, the guidance does describe a minimum set of
criteria that a State voluntary cleanup program should meet before EPA
signs an MOA with the State concerning its voluntary cleanup program.
In this guidance, EPA uses the term ``voluntary'' to mean ``private
party-initiated.'' It does not imply a lack of State oversight and/or
approval of cleanup activities. Some State voluntary cleanup programs
require the ``voluntary'' party to enter into an enforceable consent
agreement.
III. Implementation
A. Scope and Applicability
The principles outlined in this policy may apply to all sites,
except as specified below.
1. Those sites designated as Higher Risk (or Tier I)
sites,4 either under the screening process described in the
Attachment to this guidance, or under an alternative screening process
or mechanism proposed by the State and approved by EPA Headquarters,
are not eligible for inclusion within the scope of an MOA.
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\4\ Higher Risk (or Tier I) sites are sites that, while not
currently proposed for listing on the NPL, have greater potential
for being addressed under CERCLA authorities.
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2. Those sites proposed for or listed on the National Priorities
List (NPL); or, those sites where ranking packages proposing their
inclusion on the National Priorities List (NPL) are submitted to EPA
Headquarters, are not eligible for inclusion within the scope of the
MOA.
3. Those sites for which an order or other enforcement action is
issued or entered under CERCLA or sections 3008(h), 3013(a), or 7003(a)
of RCRA, and is still in effect, are not eligible for inclusion within
the scope of an MOA.
4. Those sites undergoing RCRA corrective action pursuant to RCRA
sections 3004(u), 3004(v) or 3008(h) are not eligible for inclusion
within the scope of an MOA. (However, see below for details on certain
situations where exceptions may be made to this restriction for
facilities or portions of facilities where correction action has not
yet been initiated under an order or permit.)
The Region and the State may agree to apply the principles of the
MOA to voluntary cleanups that have already begun if the State's
voluntary cleanup program met the requirements of this guidance at the
time those voluntary cleanups commenced. The MOA should clarify that
EPA is not waiving its claims for past costs under CERCLA or other
relevant authority (to the extent EPA has incurred such costs), and the
MOA does not affect EPA's ability to recover these costs.
B. Site Designation
Generally, sites that are included within the scope of the MOA will
be those types of sites that are often less-contaminated or that pose
lower risk to public health, welfare or the environment; these types of
sites are not typically addressed by EPA CERCLA cleanup actions. For
purposes of this guidance, EPA will designate these sites as Lower Risk
(or Tier II) sites. EPA's expectation for Lower Risk (Tier II) sites
covered by an EPA/State MOA concerning State voluntary cleanup programs
is that EPA cleanup actions should be necessary only under very limited
circumstances, and that the contact for cleanup of Lower Risk (or Tier
II) sites is the State.
EPA has developed a site designation and screening mechanism that
distinguishes Higher Risk (or Tier I) and Lower Risk (or Tier II) sites
(See Attachment). The MOA should explain that States or volunteering
parties will use this screening mechanism, which is attached, to
designate a site as Higher Risk (Tier I) or Lower Risk (Tier II). A
State may propose to EPA Headquarters an alternative screening process
or mechanism for designating sites as Higher Risk (or Tier I) or Lower
Risk (or Tier II). The State should demonstrate that the proposed
alternative screening mechanism achieves results consistent with the
results of the process described in the Attachment. If EPA Headquarters
approves the alternative site tiering process, the MOA should attach
the description of the alternative screening process. The MOA should
also
[[Page 47498]]
recognize that alternative method as a way to designate sites as Higher
Risk (or Tier I) or Lower Risk (or Tier II).
The MOA should state that documentation of the decision designating
a site as Higher Risk (or Tier I) or Lower Risk (or Tier II) should be
kept in the file maintained by the State voluntary cleanup program, and
be made available to EPA upon request. The MOA should also specify that
the State is responsible for the site designations. If EPA subsequently
determines that a site was improperly designated as Lower Risk (Tier
II), the provisions of section III. D. ``EPA CERCLA Action'' do not
apply to that site. The sites addressed through a State voluntary
cleanup program that do not have documentation establishing a site as
Lower Risk (Tier II), should not be eligible for inclusion within the
scope of an MOA concerning EPA CERCLA cleanup actions.
C. Applicability to Facilities subject to RCRA Requirements
This guidance is also applicable to CERCLA actions at sites subject
to RCRA requirements, subject to the restrictions in section III. A.,
above, and as discussed below. Generally, this guidance could apply to
two types of sites subject to RCRA: (1) sites at which there are only
generators of hazardous waste; and (2) hazardous waste treatment,
storage or disposal facilities (TSDFs).
Generators
Sites at which there are only generators of hazardous waste are
typically cleaned up by State cleanup programs (or, in some cases, the
Federal CERCLA program) and are within the scope of the MOA unless
otherwise excluded by the restrictions in Section III.A., above.
TSDFs
Hazardous waste treatment, storage or disposal facilities (TSDFs)
are typically cleaned up by EPA or authorized States under the RCRA
corrective action provisions (See, RCRA sections 3004(u) and (v) and
3008(h)). TSDFs or portions of TSDFs where corrective action has not
yet been initiated under an order or permit may be included within the
scope of the MOA on a case-by-case basis. At the Federal level, the
CERCLA program has already generally deferred cleanups of RCRA TSDFs,
including those RCRA TSDFs currently being addressed in authorized
States under order or permit, to the RCRA program (see, 60 FR 14641;
March 20, 1995).
Effect of RCRA Authorization
Under RCRA section 3006, EPA may authorize States to carry out the
RCRA program (including corrective action requirements), subject to EPA
oversight. In a State authorized to implement RCRA corrective action,
EPA expects the State to be the primary implementor of RCRA
requirements at all facilities subject to corrective action, including
facilities that have, have had, or should have had, RCRA interim
status. Authorized States may, at their discretion, allow cleanup of
TSDFs or portions of TSDFs under a State voluntary program. In an
authorized State, TSDFs or portions of TSDFs where corrective action
has not yet been initiated under an order or permit may be addressed by
the policy discussed in section III. D. of this guidance on a case-by-
case basis.
Effect of Cleanup Under a State Voluntary Program on RCRA Permitting
Requirements
In authorized and non-authorized States, a voluntary cleanup at a
TSDF does not avoid the requirements that TSDFs obtain RCRA permits and
that RCRA permits address corrective action. In cases where voluntary
cleanups occur prior to permit issuance, EPA or the authorized State,
at the time of permit issuance, must determine whether or not a
voluntary cleanup satisfied all corrective action requirements or
whether additional corrective action activities are needed (e.g., if
the voluntary cleanup addressed only a portion of the facility subject
to corrective action). Voluntary cleanups can substantially accelerate
the corrective action process by, for example, allowing it to proceed
before permit issuance or, where a permit has been issued, by allowing
more immediate remediation of certain areas which are not covered by
the permit, unless otherwise excluded by the restrictions in section
III.A., above.
D. EPA CERCLA Action
The Regions should state in the Memorandum of Agreement the
following:
For sites being investigated or cleaned up consistent with the
practices and procedures of a State voluntary cleanup program that
meets the criteria discussed in this guidance, EPA will not exercise
its cost recovery authority unless:
a. The Administrator determined that the release or threat of
release may present an imminent and substantial endangerment to public
health or welfare or the environment; or,
b. The State requests the Administrator to take action; or,
c. Conditions at the site, that were unknown to the State at the
time the response action plan was approved, are discovered, and such
conditions indicate, as determined by the Administrator or the State,
that the response action is not protective of human health or the
environment; or,
d. The cleanup of the site is no longer protective of human health
or the environment, as determined by the Administrator or the State,
because of a change or a proposed change in the use of the site.
Except as provided in (a) through (d) above, EPA does not generally
anticipate taking removal or remedial action at sites involved in State
Voluntary Cleanup Programs addressed by a signed EPA/State Superfund
Memorandum of Agreement.
E. EPA/State Coordination
The outcome of these MOAs is EPA acknowledgment of the adequacy of
a State voluntary cleanup program, and EPA's intention to rely on
States to be responsible for addressing sites included within the scope
of MOAs concerning these State voluntary cleanup programs. EPA and
States should be developing MOAs in the context of the new framework
for the State/EPA partnership, which EPA and State Environmental
Managers endorsed in July 1994. A key principle governing the EPA/State
relationship is that each State/EPA relationship must be based on an
understanding of--and consent for--a clear assignment of roles and
responsibilities. This principle envisions utilization of the
comparative advantages and inherent strengths that each party brings to
the relationship. Adherence to this principle should help avoid
duplication of effort, and maximize the number of sites cleaned up
through the efficient use of EPA and State resources.
Prior to signing an MOA concerning a State voluntary cleanup
program, the Region should review all relevant documents concerning the
voluntary cleanup program to determine if the State voluntary cleanup
program meets the six criteria discussed below. A Region may wish to
conduct a State visit to review the State voluntary cleanup program
prior to signing an MOA.
The MOAs concerning State voluntary cleanup programs should include
a provision that EPA will review the MOA upon significant changes to
the State voluntary cleanup program, and that the State will provide
EPA with prompt notice of changes to their laws, regulations, resource
levels, guidance,
[[Page 47499]]
policies and practices governing such programs. The MOA should also
state that EPA will periodically conduct reviews of State Voluntary
Cleanup Programs where EPA has signed MOAs with States for the purpose
of assessing how effectively EPA and the States are meeting the goals
and expectations described in the MOA.
These reviews of signed MOAs should be conducted on a staggered
basis so that all MOAs signed in a Region are not up for review at the
same time. At a minimum, the initial review of an MOA should be
conducted three years after the date EPA signs an MOA; at a minimum,
subsequent reviews of MOAs should be conducted every five years
thereafter. While this guidance does not invalidate MOAs signed by EPA
and States before the effective date of this guidance, an EPA Region
should begin its staggered reviews by starting with those MOAs. Reviews
of existing voluntary cleanup MOAs should be conducted to assess the
consistency of State voluntary cleanup programs with this guidance.
When an interested party expresses concern to EPA about a specific
site covered under the MOA, EPA may contact the State, which would be
responsible for providing documentation to EPA that designates the site
as a Lower Risk (Tier II) site. EPA and the State should discuss the
party's concern as well as the status of the site under the State
voluntary cleanup program. If the public expresses significant concerns
to EPA about any aspect of the State voluntary cleanup program, EPA and
the State will discuss how the MOA is being implemented, and whether
the State's voluntary cleanup program continues to meet the
requirements set forth in this guidance.
Prior to EPA deciding to sign an MOA concerning State voluntary
cleanup programs, the Region will discuss with the State its views and
record on NPL listing, and will consider that information as a factor
in deciding whether to sign an MOA. EPA will include the State's views
and record on NPL listing as part of its periodic reviews of how
effectively the MOA is being implemented.
F. Criteria for a State Voluntary Cleanup Program
Before a Region and State sign an MOA that acknowledges the
adequacy of a State voluntary cleanup program, the Region should ensure
that the State voluntary cleanup program meets the criteria described
below. The MOA should make clear to any private party that recovery of
response costs under CERCLA will require that the cleanup action meet
the requirements outlined in the National Contingency Plan (See 40 CFR
300.700 et. seq.).
1. Community Involvement
Public involvement activities ensure that the public is both
informed of and, if interested, involved in planning for response
actions. Under voluntary cleanup programs, the State and/or the private
sector may provide the opportunity for community involvement
activities. General methods of providing the opportunity for meaningful
community involvement may include practices, policies, guidance, or
regulations on conducting community involvement on a site-by-site
basis.
The State voluntary cleanup program should provide opportunities
for meaningful community involvement that are responsive to the risk
posed by the site contamination and the level of public interest. While
States should be afforded discretion in how their program provides such
opportunities, State programs should, at a minimum, provide for
adequate notification of the proposed voluntary cleanup plan to
affected parties. The community involvement criterion can be
substantively met, on a site-by-site basis, by the State voluntary
cleanup program through any of the methods suggested below. At sites
where a significant segment of the community does not speak English as
a first language, there should be provisions for providing site
information in languages other than English.
a. Notifications about voluntary response actions to local
government officials and community groups;
b. Publication of legal notices about voluntary response actions in
city or community newspapers (or other media, such as radio, church
organizations and community newsletters) at key milestones in the
response action process;
c. Other forms of notification about voluntary response actions;
Where the public has been involved in site activities and
demonstrates an interest in participating in response action planning
and implementation, additional meaningful public involvement
opportunities may include:
d. Preparation of a public involvement plan that establishes
opportunities for public involvement. Such a plan may provide
background about the site, response actions already conducted, and the
history of public involvement at the site; identify the specific
opportunities for public participation in cleanup decisions that will
take place; and, describe activities that will be undertaken to address
and incorporate public concerns in the cleanup.
e. Involvement of the public in understanding the risk reduction
aspects of the voluntary cleanup.
f. The publication and distribution of site fact sheets.
g. Conduct of community interviews, including interviews through
notification and communication with community organization officials,
environmental justice groups, civic groups, environmental interest
organizations, and church organizations.
h. Numerous other methods to solicit public participation and
comment.
i. Public meetings or hearings, either formal or informal.
j. Local land use planning activities on current and/or future uses
of sites.
2. Protectiveness
A State voluntary cleanup program should ensure that voluntary
response actions are protective of human health, welfare, and the
environment. Reasonably anticipated future land uses should be
considered in establishing protective contaminant concentrations. All
voluntary response actions must comply with any Federal, State or local
laws that apply to that site. Ways to determine protectiveness may
include, but are not limited to:
a. Background contaminant concentrations;
b. Site specific risk assessments, based on U.S. EPA's Risk
Assessment Guidance for Superfund, part A and B, and associated policy
updates, e.g., soil screening guidance, or on State regulations and
guidance;
c. Contaminant-specific models such as the biokinetic uptake model
for lead;
d. Applicable and/or Relevant and Appropriate Requirements, such as
Maximum Contaminant Levels (MCLs) for groundwater;
e. Consistency with a human health risk range, as defined in 40 CFR
300.430(e)(2)(i)(A)(2) for known or suspected carcinogens, or a hazard
index for threshold contaminants, as defined in 40 CFR
300.430(e)(2)(i)(A)(1); or,
f. Risk-based corrective action assessment.
2A. Response selection. Response actions should be conducted cost-
effectively, consistent with projected future uses at the site. All
response actions must comply with any Federal, State and local laws
that apply to the site. Long-term reliability should also be a goal
when selecting response actions. Response actions may include one or
more of the following:
a. Treatment (active or passive) that eliminates or reduces the
toxicity,
[[Page 47500]]
mobility, or volume of hazardous substances, pollutants, or
contaminants;
b. Containment of contaminated media to acceptable exposure levels;
c. Transport to off-site treatment;
d. Restricted access to and/or use of the site through
institutional controls that are enforceable over time.
3. Resources/Technical Assistance
The State should demonstrate that its voluntary cleanup program has
adequate resources, including financial, legal and technical, to ensure
that voluntary response actions are conducted in an appropriate and
timely manner, and that meaningful outreach efforts are made to the
affected community. The State agency should make available both
technical assistance, and streamlined procedures where appropriate, to
ensure expeditious voluntary response actions.
4. Certification of Response Action Completion
A State Voluntary cleanup program should provide adequate
mechanisms for the written approval of response action plans and a
certification or similar documentation indicating that the response
actions are complete. In situations where a State uses alternative
mechanisms to approve cleanup decisions, all approval determinations
will be considered the same as the State making the determinations, and
as such, the State will be viewed as responsible for such decisions.
5. Oversight Authorities
A State voluntary cleanup program should provide adequate oversight
to ensure that voluntary response actions, including site assessments/
characterizations, are conducted in such a manner to assure protection
of human health, welfare and the environment, as described above. For
sites with nonpermanent remedies, especially nonpermanent remedies
premised on the restricted use of the land, the State voluntary cleanup
program should meet this criterion by including a requirement that the
State program receives progress reports on site conditions, or by
reserving the State program's right to conduct site inspections. If the
State voluntary cleanup program does not require the State to monitor a
site after the final cleanup report is approved, then the State
voluntary cleanup program could meet this criterion by reserving the
State's authority to remove the cleanup certification under certain
circumstances, such as a change in the site's use, a failure of
institutional controls, or the discovery of additional contamination.
6. Enforcement Authorities
The State voluntary cleanup program should show the capability,
through enforcement or other state authorities, of ensuring completion
of response actions if the volunteering party(ies) conducting the
response action fail(s) or refuse(s) to complete the necessary response
activities, including operation and maintenance or long-term monitoring
activities.
G. Reporting Requirements
The Region and the State should negotiate the need for reporting
site names and the status of the sites by name to best suit the needs
of that Region and State. The MOA should state, however, that the State
agrees to maintain a list of site names (and locations) covered by the
MOA and to make such list available to EPA and the public upon request.
The State Agency should report, at a minimum, the following information
to the Region on an annual basis.
a. Number of sites in each stage of the State voluntary cleanup
program;
b. Number of sites entering the voluntary cleanup program the
previous year; and,
c. Number of sites having received State agency approvals of full
or partial completions in the previous year.
EPA should state in the MOA that it will conduct selective audits
of sites within the scope of the MOA for the purpose of assessing how
the site designation methodology attached to this guidance, or an
alternative site designation mechanism approved by EPA Headquarters, is
being implemented by either the State or the volunteering party.
Regions and States should discuss the status of CERCLIS 5
sites covered by the MOA at least semi-annually to ensure EPA/State
coordination on sites covered by the MOA. This is especially important
since EPA decides which sites are removed from CERCLIS.
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\5\ CERCLIS is the abbreviation of the CERCLA Information
System, EPA's comprehensive data base and management system.
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IV. Financial Assistance to States To Support Voluntary Cleanup Program
Activities
EPA recognizes that most State voluntary cleanup programs are
intended to be self-sustaining. Most of the voluntary programs with
active State oversight require the private party to pay an hourly
oversight charge to the State environmental agency in addition to all
cleanup costs. Some States require application fees that can be applied
against oversight costs.
However, EPA does recognize that States may need financial
assistance to help establish new State voluntary cleanup programs and
to help enhance existing State voluntary cleanup programs. To
accomplish this, the Region may enter into cooperative agreements with
the State to provide funding to the State for certain purposes.
The Region may provide Fund money to States for development and
enhancement of voluntary cleanup programs through core program
cooperative agreements. OSWER has developed guidance for use of core
program cooperative agreement funding of State voluntary cleanup
program infrastructure. (See May 1, 1997 memorandum from Timothy
Fields, Jr., Acting Assistant Administrator, OSWER, entitled ``Approach
for Regional Funding of State Voluntary Cleanup Programs.'') If the
Region intends to provide funds to the State for voluntary programs,
the Region should identify its resource needs for State voluntary
cleanup programs in its annual budget development process.
V. Technical Assistance to States to Support Voluntary Cleanup
Program Activities
EPA will also provide technical assistance to States to support
voluntary cleanups. EPA will share with States information contained in
publicly available national databases. EPA will share any lessons
learned or national expertise it has gained through the CERCLA program
with States who face similar assessment and cleanup problems at
voluntary cleanup sites.
Tier I/II Designation and Screening Process Summary
Introduction/Purpose
This document summarizes EPA's Tier I and Tier II definitions and
screening process for sites being addressed through voluntary cleanup
programs. Tier I sites are among those where EPA has historically taken
cleanup actions under the Federal Superfund program. Tier II sites are
generally representative of those where EPA has not historically taken
Federal Superfund cleanup actions. EPA intends that any party can use
the process outlined below to make Tier I/II designations.
Understanding the potential for Superfund involvement enables
stakeholders to make more informed property cleanup, transfer, and
redevelopment decisions.
[[Page 47501]]
Defining Tier I and Tier II Sites
Tier I sites are those that have greater potential to require long-
term or emergency cleanup work under the Federal Superfund program.
These are sites which have a release of a hazardous substance,
pollutant, or contaminant that has caused, or is likely to cause, human
exposure or contamination of a sensitive environment. These sites
typically involve contamination of drinking water, surface water, air,
or soils which has either caused, or is likely to cause, exposure to
nearby populations, or has contaminated, or is likely to contaminate,
sensitive environments (such as wetlands, national parks, and habitats
of endangered species, etc). Tier II sites are those that have less
potential to require long-term or emergency cleanup work under the
Federal Superfund program. This includes sites which: (1) Do not
qualify for response under Superfund (e.g., CERCLA petroleum exclusion
sites); (2) score below 28.5 based on EPA's Hazard Ranking System
(HRS), 55 FR 51532; (3) are being adequately addressed under other
Federal statutes, subject to the restrictions specified in Section III.
A. ``Scope and Applicability'' of the MOA/VCP guidance document; or (4)
otherwise do not meet the criteria given above for Tier I sites.
Screening Process
To conserve resources, EPA has employed a phased, progressively
more detailed screening process to identify Federal Superfund sites.
Key factors in making decisions about sites include whether a release
of hazardous substances has occurred or is likely to occur and
determining whether people or sensitive environments have been or are
likely to be impacted by the release. Only about 15 percent of the
sites screened by Superfund to date have required removal or remedial
actions--most are screened out. The Superfund screening process differs
from the private sector site evaluation approach which typically is
interested in what environmental liabilities and remediation costs are
associated with a site or property. Consequently, the private sector
assessments focus on collecting information on the property, not
offsite impacts. The Tier I/II screening process outlined below uses
common elements of both approaches and incorporates, when necessary,
the data needed for EPA to ensure human health and environmental issues
are addressed.
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EPA's HRS model can also be applied at any point in the assessment
process to assist parties in determining the likelihood of Federal
Superfund interest. Sites with an HRS score below 28.5 are considered
Tier II by the Agency and account for most of the sites assessed under
Superfund.
The steps involved in making a Tier I/II determination are further
described in the Screening Process section of the Tier I/II Designation
and Screening Process document.
[[Page 47502]]
Conclusion
EPA believes the screening process described above can by used by
any party to determine whether a site, in most cases, would be Tier I
or Tier II. It enables parties to make many Tier I or Tier II
designations based on information collected as part of the private due
diligence process. Additional detail can be found in the attachment
entitled ``Tier I/II Designation and Screening Process.''
Tier I/II Designation and Screening Process
Purpose
The purpose of this guidance is to provide definitions of Tier I
and Tier II sites within the context of MOAs covering State VCPs. The
guidance also describes a process that can be used by any party, e.g.,
site owners, State Agencies, etc., to decide whether a site should be
classified as Tier I or Tier II for the purpose of determining status
under the MOA. The overall goal of this guidance is to assist users in
reaching consistent decisions regarding Tier I/II designations.
Scope
EPA intends that this approach be used by states and/or private
parties, including, for example, site owners, to assist them in making
decisions regarding their status under a State VCP/MOA. EPA believes
that in most instances private parties can use the following
definitions and screening process to make accurate determinations on
whether sites are Tier I or Tier II. Although the volunteering party
may conduct the assessment on which the tiering decision is based, the
State is ultimately responsible for tiering decisions. If the EPA
subsequently determines that a site was improperly classified as ``Tier
II'', the provisions of section III. D. ``EPA CERCLA Actions'' of the
MOA/VCP guidance document will not apply.
The Agency anticipates that some of the sites addressed through
voluntary cleanup programs may be included in EPA's Comprehensive
Environmental Response, Compensation and Liability Information System
(CERCLIS) inventory. EPA removes sites from CERCLIS after assessment
and any necessary Superfund response and enforcement actions are
completed. Approximately 75 percent of the sites addressed under the
Federal Superfund program to date have been removed from the CERCLIS
inventory. With respect to voluntary cleanup programs, EPA will
continue to decide which sites are removed from CERCLIS based on the
same criteria that are applied to sites not covered under these
programs.
Background
The Federal Superfund program evaluates sites brought to the
Agency's attention to identify those sites posing the most serious
threats to human health and the environment. Generally, EPA employs a
multi-phase evaluation process to identify which sites are among the
highest priority for response, including whether they need removal
actions, and to determine what response actions are appropriate.
Results of the evaluations are used to determine whether involvement by
the Federal Superfund program, e.g., remedial actions at National
Priorities List (NPL) sites, performing time critical removal actions
by the Federal Superfund program, etc., is warranted.
These evaluations, including identifying hazardous substances,
exposure pathways, and receptors/targets, seek to identify sites that
have caused, or are likely to cause, human exposure or contamination of
sensitive environments. The definition of Tier I sites is directed
towards delineating these sites. Sites that do not meet these criteria,
which the Agency expects to be the majority of sites brought to the
Agency's attention, are defined as Tier II sites. Specifics of these
definitions are addressed below.
Tier I Definition
The Federal Superfund Program will generally classify a site as
Tier I if a release from that site has caused, or is likely to cause,
human exposure to the release or contamination of a sensitive
environment, and the release can be addressed under CERCLA authorities,
and cleanup of the release has not been generally deferred to another
Federal cleanup program. This includes, but is not limited to, sites
where:
Drinking water supplies have been, or are likely to
become, contaminated with a hazardous substance (as defined in HRS); or
Soils on or in close proximity to school, day care center,
or residential properties have been contaminated by a hazardous
substance three times above background levels; or
Toxic substances that bioaccumulate have been discharged
into surface waters; or
Air releases of hazardous substances have been identified
in a populated area; or
Sensitive environments have been contaminated; or
Releases would require immediate action from EPA (e.g.,
fire, explosions).
Note: Italicized terms are defined in the Tier I/II Screening
Mechanism Definitions section at the end of this document.
Tier II Definition
Tier II sites are those that would be unlikely to warrant Federal
remedial actions, i.e., those that do not meet the definition for Tier
I sites. Tier II sites would also include sites that score below 28.5,
based on the Hazard Ranking System (HRS), 55 FR 51532, and do not meet
any of the characteristics of Tier I sites identified above. The
majority of sites brought to the Agency's attention over the course of
the Superfund program have scored below 28.5 and are considered Tier
II.
Screening Process
The screening process below represents an approach to determine
whether a site is Tier I or Tier II. The process consists of multiple
steps in which each successive step involves more detailed information
about a site and its environs. Information needed at each step is used
to determine whether a site is Tier I, Tier II, or if further
evaluation is necessary to make a Tier I/II decision. EPA's HRS model
can be applied at any point in the process to assess a site. Those
sites which score below 28.5 at any step in the process and do not meet
any of the characteristics of Tier I sites identified above are defined
as Tier II. The HRS model is backed by a substantial body of guidance
available to assist users in making decisions consistent with those of
EPA. On the other hand, if the reviewer identifies conditions
consistent with any of the elements that make up a Tier I site, no
further investigation would be needed to classify the site as Tier I.
Given that each step in the process builds upon information collected
in previous stages, the process may be entered at any point based on
the amount of knowledge and data available regarding site conditions
and its environs.
The iterative nature of assessing sites by collecting more detailed
information and reaching conclusions in successive evaluation stages is
similar to both the public sector approach (e.g., preliminary
assessment followed by a site inspection if warranted) and the private
sector approach (e.g., phase I assessment based on ASTM Standard
Practice E 1527, followed by a phase II if warranted and requested).
Tier I/II status reflects site conditions at the time the
assessment data are collected and a decision is made. As such, a Tier
I/II decision could become invalid, if site conditions change, new
information is discovered, or site
[[Page 47503]]
characteristics change (e.g., a new residential development is built on
a site).
The five major steps in making a Tier I/II determination include:
(1) Exclusions; (2) Phase I; (3) Expanded Phase I; (4) Limited
Sampling; and (5) Extensive Sampling. Each of these steps is described
in detail below.
Exclusions. The first step in determining whether a site is Tier I
or Tier II involves determining whether the site is eligible for
cleanup under CERCLA authorities or if the site is being adequately
addressed under another federal statute such as the Resource,
Conservation and Recovery Act (RCRA). Sites that are ineligible for
CERCLA response or are being addressed under another federal statute
instead of CERCLA should receive a Tier II designation.
A. Statutory restrictions. Some substances are excluded under
CERCLA, and sites that contain only those substances are ineligible for
CERCLA response actions. Similarly, Section 104(a)3 of CERCLA lists
other limitations on CERCLA response. In general, a CERCLA response may
be taken at a site if there is a release or threat of a release of a
hazardous substance, pollutant or contaminant, or if the site poses an
imminent or substantial danger to public health, welfare, or the
environment).
Section 101(14) of CERCLA defines hazardous substances by
referencing substances specifically listed under other Federal laws. A
``hazardous substance'' is any element, compound, mixture, solution or
substance specifically designated as a ``hazardous substance'' or is
regulated under the Resource Conservation and Recovery Act, the Clean
Air Act, Clean Water Act, or Toxic Substances Control Act. Section
101(33) of CERCLA broadly defines the term ``pollutant or contaminant''
which could include any substance known or reasonably anticipated to be
harmful to human health or ecological health. Because no substances are
actually listed as pollutants or contaminants in CERCLA, the Agency
determines on a case-by-case basis which substances fall within the
definition.
There are specific statutory exclusions that could cause a site to
be ineligible for CERCLA response. For example, hazardous substances,
as defined under CERCLA, specifically exclude petroleum and natural
gas, and therefore CERCLA authority may not be used to respond to
releases of these substances unless they are specifically listed or
designated under CERCLA. The exclusion applies to petroleum, including
crude oil or any fraction thereof (if the fraction is not specifically
listed nor designated a hazardous substance by other listed federal
acts), natural gas, natural gas liquids, liquefied natural gas, and
synthetic gas usable for fuel. Sites are excluded if they contain only
excluded petroleum products. EPA expects that most releases from
petroleum underground storage tanks (USTs) at gasoline filling
stations, for example, would qualify for this exemption.
On the other hand, releases of petroleum products that are
contaminated with hazardous substances (i.e., used oil/waste oil
contaminated with metals or PCBs) may fall within CERCLA response
authorities, if the hazardous substances cannot be separated from the
petroleum, or if plumes of exempted substances are commingled with
plumes of non-exempted substances.
In addition, section 101(22) of CERCLA excludes a limited category
of radioactive materials from the statutory definition of ``release,''
making a site ineligible for CERCLA response. The excluded categories
of radioactive materials are:
1. Releases of source, by-product, or special nuclear material (not
including source material) subject to section 170 of the Atomic Energy
Act; 6 and
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\6\ Under this act, ``source'' means uranium or thorium, or any
combination of the two, in any physical or chemical form, ``by-
product'' means any radioactive material that was made radioactive
by exposure to radiation from the process of using or producing
special nuclear material, and ``special nuclear material'' is
plutonium, uranium-233, enriched uranium-233 or--235, or any
material that the NRC determines to be special nuclear material not
including source material.
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2. Any release of source, by-product, or special nuclear material
from any processing site specifically designated under the Uranium Mill
Tailings Radiation Control Act of 1978.
Parties should consult with State and/or Federal contacts and
consult appropriate case law to determine whether the site is excluded
from CERCLA consideration due to statutory restrictions.
B. Other federal statutes. In addition to statutory restrictions,
sites being adequately addressed under other federal statutes, such as
RCRA, may also qualify for a Tier II designation, but refer to Section
III. A. ``Scope and Applicability'' of the MOA/VCP guidance document to
determine whether a specific site is eligible for inclusion under the
MOA/VCP. RCRA is EPA's other central authority for cleaning up releases
of hazardous substances, and has roughly parallel procedures to CERCLA
in responding to releases of hazardous substances. The Agency has
adopted a policy to use RCRA Subtitle C (hazardous waste) authority to
respond to sites that can be addressed under RCRA Subtitle C corrective
action authority (see 54 FR 41000, October 4, 1989).
Types of sites covered under the policy include hazardous waste
treatment, storage and disposal facilities (TSDFs) that qualify under
EPA's National Priorities List/RCRA deferral policy (see 51 FR 21057,
53 FR 23980, and 54 FR 41004). Parties should consult with State and
Federal contacts to determine whether a site is being addressed under
another federal statute, and therefore, whether a Tier II designation
is appropriate. Again, parties must still refer to Section III. A.
``Scope and Applicability'' of the MOA/VCP guidance document to
determine whether a specific site is eligible for inclusion under the
MOA/VCP.
Parties should consult with State and/or Federal contacts and
consult appropriate case law to answer the following questions:
Question 1A: Is the site eligible for response under CERCLA
authorities?
If NO, the site should be classified as Tier II and no further work
under this process is necessary;
If YES, refer to Question 1B:
Question 1B: Is the EPA or the State addressing the site under
another federal statute instead of CERCLA?
If NO, proceed to the Phase I step (or other appropriate step
depending on site information available);
If YES, the site should be classified as Tier II and no further
work under this process is necessary.
Phase I
The Phase I step within this process is quite similar to the
methods prescribed by ASTM Standard Practice E 1527, although it is
limited to hazardous substances as defined under CERCLA. The primary
purpose of the Phase I step is to gather readily available information
about a site to identify the presence or likely presence of an existing
or past release of a hazardous substance into the ground (i.e., soil),
ground water, surface water, or air. This step determines whether there
is evidence or an indication that hazardous substances, pollutants, or
contaminants were ever handled or disposed at the site either currently
or in the past.
The Phase I step in this process consists of a review of records
and related environmental reports pertaining to the site and a site
visit to observe site conditions. Types of information collected during
this step include a
[[Page 47504]]
general site description, current and past site use (e.g., nature and
type of industrial use), topography, and waste characteristics,
including an estimation of the type and quantity of hazardous
substances at the site. Visual observations should consider stressed
vegetation, discolored soils, oily ponds, and similar signs of
contamination. No sampling is involved in this step. Geologic,
hydrogeologic, and hydrologic data will prove useful along with
topographic maps to determine whether migration of hazardous substances
is likely. Data collected should help identify the potential
distribution and mobility of hazardous substances in soil, ground
water, surface water, and air.
Observations should also identify any site conditions warranting
immediate or emergency actions. Examples of these include the threat of
fire and/or explosion from unstable or reactive hazardous materials,
the threat of direct contact with a hazardous substance, the threat of
a continuing release of a hazardous substance, and the threat of
contaminating surface waters or drinking water supplies.
The collection and review of readily available information at this
step should be sufficient to answer the following question:
Question 2: Is it reasonable to expect that hazardous substances
are present at the site?
If NO, the site should be classified as Tier II and no further work
under this process is necessary;
If YES, proceed to the Expanded Phase I step (or other appropriate
step depending on site information available).
Note: The site should be classified as Tier I if information
indicates a release of a hazardous substance, pollutant, or
contaminant has caused, or is likely to cause, human exposure or
contamination of a sensitive environment, or if the site otherwise
exhibits conditions such as those described under the Tier I
definition above.
Expanded Phase I
If the Phase I indicates a reasonable expectation that hazardous
substances are present at the site, the next step in this process
involves gathering environs data to determine what could be impacted by
a release from the site. Therefore, the purpose of the Expanded Phase I
step is to identify and verify the existence and locations of nearby
people (or pathways of human exposure, e.g., water intakes or wells)
and sensitive environments that might be threatened by a release from
the site.
Examples of data collected at this stage include nearby
residential, worker, and student population estimates, nearby
municipal, private, and other drinking water supplies, drinking water
wells and intakes, fisheries (including sport and subsistence fishing),
and sensitive environments such as wetlands, national parks, wildlife
refuges, and habitats of threatened or endangered species. This
information is collected to determine whether a release of hazardous
substances at the site could lead to human exposure or contamination of
sensitive environments.
Data collected under the Expanded Phase I step should be sufficient
to answer the following question:
Question 3: Could nearby populations or sensitive environments be
at risk from the site?
If NO, the site should be classified as Tier II and no further work
under this process is necessary;
If YES, proceed to the Limited Sampling step (or other appropriate
step depending on site information available).
Note: The site should be classified as Tier I if information
indicates a release of a hazardous substance, pollutant, or
contaminant has caused, or is likely to cause, human exposure or
contamination of a sensitive environment, or if the site otherwise
exhibits conditions such as those described under the Tier I
definition above.
Limited Sampling
If the Phase I investigation indicates a reasonable expectation
that hazardous substances have been present at the site and the
Expanded Phase I indicates that human populations or sensitive
environments may be threatened by a release from the site, sampling
should be conducted to confirm the presence of hazardous substances on
the site. The purpose of the Limited Sampling step is to collect and
analyze waste and environmental samples, using field screening and
analytical techniques where appropriate, to determine the hazardous
substances present at a site and whether they are being released to the
environment.
The Limited Sampling step is not intended to be an exhaustive
assessment of environmental conditions at a site. Rather investigators
should obtain enough information to confirm whether hazardous
substances are present. As in the Phase I step, investigations should
identify site conditions posing immediate health or environmental
threats which require emergency response.
Site sampling typically requires developing a work plan, along with
sampling and health and safety plans. Sampling and analysis should
comply with a screening level quality of data following adequate
quality assurance and quality control (QA/QC) procedures (40 CFR
31.45). The sampling plan should employ sound, scientific and
professional judgment in identifying sampling locations.
The sampling data must be sufficient to answer the following
question:
Question 4: Does site specific sampling confirm the presence of
hazardous substances at the site?
If NO, the site should be classified as Tier II and no further work
under this process is necessary;
If YES, proceed to the Extended Sampling step (or other appropriate
step depending on site information available).
Note: The site should be classified as Tier I if information
indicates a release of a hazardous substance, pollutant, or
contaminant has caused, or is likely to cause, human exposure or
contamination of a sensitive environment, or if the site otherwise
exhibits conditions such as those described under the Tier I
definition above.
Extensive Sampling
If the Limited Sampling step confirms the presence of hazardous
substances at the site, more extensive sampling may be required to
determine whether the site is Tier I or Tier II. The purpose of the
Extensive Sampling step is to further evaluate the degree to which a
site presents a threat to human health or welfare or the environment by
collecting and analyzing waste and environmental media samples. This
step is implemented to document releases and exposure/contamination on-
site and off-site. Off-site sampling is needed to provide background
samples, and where appropriate, identify human exposure or
environmental contamination.
Background samples are needed to determine whether contamination at
the site is at least three times higher than background levels.
Sampling conducted under this step should comply with a definitive data
level of QA/QC (40 CFR 31.45). The detection limits used in the
analysis of both the background and site-related contamination samples
should be quantitatively consistent with sample quantitation limits as
specified under the Superfund Contract Laboratory Program.
Quantification of on-site and off-site threats should be sufficient to
answer the following:
Question 5: Do on-site and off-site sampling data show exposure, or
likely exposure, of nearby populations, and/or contamination, or likely
contamination of sensitive environments at a minimum of three times
above background levels or above EPA standard sample quantification
limits?
[[Page 47505]]
If NO, the site should be classified as Tier II and no further work
under this process is necessary;
If YES, the site should be classified as Tier I.
Note: The site should also be classified as Tier I if the site
otherwise exhibits conditions such as those described under the Tier
I definition above.
Request for Comments
The Agency is requesting comment on the criteria and screening
process. EPA would like to receive comments on the screening mechanism,
both how it works in general (for example, feasibility and ease of
implementation), and specific suggestions for how the process could be
improved. In particular, EPA would appreciate feedback and comment on
the following questions:
1. What type and amount of information is needed each stage in the
decision process to reach a Tier I or Tier II decision?
1a. Would collecting the suggested information allow a party to
move forward through the decision-making process efficiently and
expeditiously?
1b. What can be done with the process to guard against inaccurate
assessments?
1c. How well will this process work within established State
programs?
2. Are the screening steps in the best logical sequence?
2a. At what point it is useful to have information on exposure
targets (i.e., nearby populations and sensitive environments).
2b. Would it be more useful to have information about exposed/
potentially exposed targets before or after limited sampling is
performed?
2c. When would information on target access to contamination be
collected?
3. If there are nearby populations or sensitive environments, how
could EPA ensure that private parties would evaluate them to account
for changes in land use in the near or long-term?
4. What tools are currently available to the public that would
allow them to collect the requested information?
4a. How would these tools work to support a party's decision from a
cost effectiveness and timeliness standpoint.
Tier I/II Screening Mechanism Definitions
The following definitions support terms identified in the Tier I,
Tier II, and Process sections above:
Background: the level of a hazardous substance that provides a
defensible reference point that can be used to evaluate whether or not
a release from the site has occurred. The background level should
reflect the concentration of the hazardous substance in the medium of
concern for the environmental setting on or near a site. Background
level does not necessarily represent pre-release conditions, nor
conditions in the absence of influence from the source(s) at the site.
A background level may or may not be less than the detection limit
(DL), but if it is greater than the DL, it should account for
variability in local concentrations. A background level need not be
established by chemical analysis. Hazard Ranking System Guidance
Manual, Interim Final, pp. 55 and 57.
Bioaccumulation: the tendency of a hazardous substance to be taken
up and accumulated in the tissue of aquatic organisms, either from
water directly or through consumption of food containing the hazardous
substance. Hazard Ranking System Guidance Manual, Interim Final, p.
294; Rand, Gary M., and Sam R. Petrocelli, Fundamentals of Aquatic
Toxicology, 1985, p. 652.
Definitive Data: data that are documented as appropriate for
rigorous uses that require both hazardous substance identification and
concentration. Definitive data are often used to quantify the types and
extent of releases of hazardous substances. Guidance for Performing
Site Inspections Under CERCLA, Interim Final, p. 99; Guidance for Data
Useability in Site Assessment, Draft, pp. 13 and 14.
Drinking Water Supply: any source of water (surface or ground) that
is currently used or could be used to supply potable water. Guidance
for Performing Site Inspections Under CERCLA, Interim Final, p.118;
Hazard Ranking System Guidance Manual, Interim Final, p. 116.
Facility: any building, structure, installation, equipment, pipe or
pipeline (including any pipe into a sewer or publicly owned treatment
works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage
container, motor vehicle, falling stock, or aircraft, or any site or
area where a hazardous substance has been deposited, stored, disposed
of, or placed, or otherwise come to be located; but does not include
any consumer product in consumer use or any vessel. CERCLA section
101(9).
Ground Water: water in a saturated zone or stratum beneath the
surface of land or water. CERCLA section 101(12).
Hazard Ranking System: scoring system used by EPA's Superfund
program to assess the relative threat between sites associated with
actual or potential releases of hazardous substances. It is a screening
tool for determining whether a site is to be included on the National
Priorities List. Hazard Ranking System Guidance Manual, Interim Final,
p.1.
Hazardous Substance: CERCLA hazardous substances, pollutants, and
contaminants as defined in CERCLA section 101(14) and 101(33), except
where otherwise specifically noted in the HRS. 40 CFR 300, Appendix A
(Hazard Ranking System), Section 1.0.
Human Exposure: any exposure of humans to a release of one or more
hazardous substances via inhalation, ingestion, or dermal contact.
Amdur, Mary O., John Doull, and Curtis D. Klaassen, Toxicology, The
Basic Science of Poisons, Fourth Edition, 1991, p. 14; Hazard Ranking
System Guidance Manual, Interim Final, pp. 153, 259, 293, 317, 363, and
411.
Nearby Populations: regularly present residents, workers, and
students and sensitive environments located on or within 1 mile from
the boundaries of a hazardous substance release. 40 CFR 300, Appendix A
(Hazard Ranking System), section 5.2.
Populated Area: any area occupied by a regularly present resident,
student, or worker and/or sensitive environment. Populated areas do not
include transient populations such as business patrons or travelers
passing through the area. Hazard Ranking System Guidance Manual,
Interim Final, p. 412; 40 CFR 300, Appendix A (Hazard Ranking System),
section 3.3.2.
Release: any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or
disposing into the environment (including the abandonment or
discharging of barrels, containers, and other closed receptacles
containing any hazardous substance or pollutant or contaminant). CERCLA
section 101(22).
Screening Data: data that are appropriate for applications that
only require determination of gross contamination areas and/or for site
characterization decisions that do not require quantitative data.
Screening data are often used to specify which areas to sample to
collect definitive data. Guidance for Performing Site Inspections Under
CERCLA, Interim Final, pp. 99 and 100; Guidance for Data Useability in
Site Assessment, Draft, p. 15.
Sensitive Environments: consist of environmental receptors
recognized in 40 CFR 300, Appendix A (Hazard Ranking System), Table 4-
23, Table 5-5, and wetlands as defined by 40 CFR 230.3.
Site: area(s) where a hazardous substance has been deposited,
stored, disposed, or placed, or has otherwise
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come to be located. Such areas may include multiple sources and may
include the area between sources 40 CFR 300, Appendix A (Hazard Ranking
System), Section 1.0. The site is neither equal to nor confined by the
boundaries of any specific property that may give the site its name. 60
FR 190, p. 51391.
Surface Waters: water present at the earth's surface. Surface water
includes rivers, lakes, oceans, ocean-like water bodies, wetlands, and
coastal tidal waters, which include embayments, harbors, sounds,
estuaries, back bays, lagoons, wetlands, etc. seaward from mouths of
rivers and landward from the baseline of the Territorial Sea. 40 CFR
300, Appendix A (Hazard Ranking System), section 4.0.2.
Wetlands: a type of sensitive environment defined in 40 CFR 230.3
as ``* * * those areas that are inundated or saturated by surface or
ground water at a frequency and duration sufficient to support, and
under normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions.'' Wetlands can
be natural or man-made. Wetlands generally include swamps, marshes,
bogs, and similar areas. Hazard Ranking System Guidance Manual, Interim
Final, p. A-20.
[FR Doc. 97-23831 Filed 9-8-97; 8:45 am]
BILLING CODE 6560-50-P