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Statutory and Policy Exclusions

A number of statutory and policy provisions affect a site's eligibility for CERCLA response actions and listing on the NPL. If any of the following issues arise at a site, contact your EPA Regional NPL Coordinator. Exclusions should not be discovered at the HRS scoring stage. These issues should be resolved at the PA or SI stage. However, new information may become available during scoring and, thus, HRS scorers should be familiar with the general site eligibility considerations.

Petroleum Exclusion

  • Petroleum, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel" are excluded from consideration under CERCLA.
  • The petroleum exclusion includes the substances found in products coming out of a refinery, including gasoline with additives such as 1, 2-dichloroethene and lead tetraethyl.
  • Whenever it is suspected that the petroleum exclusion may apply to a site, consult the EPA Regional NPL Coordinator.

HRS Guidance Manual, page 19:  CERCLA Sections 101(14) and (33) exclude petroleum from the definitions of " hazardous substances" and "pollutant or contaminant," respectively. 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 acts), natural gas, natural gas liquids, liquefied natural gas, and synthetic gas usable for fuel.

The Regional Quality Control (QC) Guidance for NPL Candidate Sites (OSWER Publication 9345.1-08, December 1991) identifies several issues to consider when scoring a site possibly containing petroleum or petroleum products:

  • CERCLA does not define petroleum. Crude petroleum includes a number of hazardous substances that would otherwise be CERCLA hazardous substances, such as benzene, toluene, xylene, and ethylbenzene. In their pure forms, these substances remain hazardous substances and can be scored. When they are part of, or released directly from, a petroleum product, they cannot be used in scoring.
  • The presence of petroleum products at a site, as a part of site contamination, does not exclude the site from consideration. Sites are excluded if they contain only excluded petroleum products.
  • Releases of petroleum products contaminated with hazardous substances (i.e., used oil/waste oil contaminated with metals or PCBs) can be listed if the hazardous substances cannot be separated from the petroleum.
  • If two distinct plumes commingle, one of petroleum and one of a hazardous substance that can be listed, the release can be listed; however, only the non-petroleum plume (including the intersection of the plumes) can be used in HRS scoring.
  • A petroleum release can be used to show aquifer interconnection for purposes of evaluating a site containing eligible substances."

Radioactive Materials

A limited category of radioactive materials is excluded from CERCLA consideration. They are:

  • Releases from a nuclear facility licensed by the Nuclear Regulatory Commission (NRC) and covered under NRC financial protection provisions.
  • Releases from one of 17 uranium tailings sites specifically designated in the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA).

HRS Guidance Manual, page 19, 20:  "Section 101(22) of CERCLA excludes a limited category of radioactive materials from the statutory definition of "release," making them ineligible for CERCLA response or the NPL. These are (1) releases of source (uranium or thorium, or any combination of the two, in any physical or chemical form), by-product (any radioactive material that was made radioactive by exposure to radiation from the process of using or producing special nuclear material), or special nuclear material (plutonium, uranium-233, enriched uranium-233 or -235, or any material that the NRC determines to be special nuclear material (not including source material)) subject to section 170 of the Atomic Energy Act; and (2) any release of source, by-products, or special nuclear material from any processing site specifically designated under the Uranium Mill Tailings Radiation Control Act of 1978.

The exclusion of these substances does not exclude other types of radioactive materials. Reporting Exemptions for Certain Radionuclide Releases. However, it is Agency policy not to list releases of radioactive materials from facilities with a current license issued by the NRC (e.g., certain medical facilities, manufacturing plants, research laboratories). These facilities are under the authority of the NRC which is responsible for requiring and overseeing cleanup at these sites. All other types of radioactive materials sites, including state licensees and former NRC licensees, are eligible for the NPL."

Other Excluded Releases

Certain releases are excluded from response by CERCLA statue, even though they may involve a CERCLA hazardous substance, pollutant, or contaminant. These include:

  • Releases that result in exposure solely within the workplace;
  • Emissions from engine exhaust of a motor vehicle, train, aircraft, vessel, or power pumping station; and
  • The normal application of fertilizer.

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