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Cleanups at Federal Facilities

Overview of Primary Environmental Regulations Pertinent to BRAC Cleanup Plan Development: Appendix A

This appendix is an introduction to the primary environmental laws and regulations applicable to all Base Realignment and Closure (BRAC) installations. The sections that follow provide your BRAC Cleanup Team and other members of the assisting Project Team, with a foundation on which to formulate your BRAC Cleanup Plan (BCP). Specific information is presented on a number of regulatory programs and processes that currently govern environmental response actions at BRAC installations. This information is particularly relevant to the task of determining regulatory response mechanisms for all contaminated sites as part of the Bottom Up Program Review discussed in sections 3 and 4.2 of this Guidebook (see Program Review Item 3).

Please note that the sections below are only overviews of the various laws and regulations discussed and should not be relied upon as substitutes for the actual complete versions.

Section A.1 presents an overview of the current legal framework governing environmental response actions at BRAC installations. This section includes a brief description of the laws discussed in sections A.2 and A.3, and contains a summary of National Environmental Policy Act (NEPA) requirements under the closure statutes.

Section A.2 summarizes the response process under the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (CERCLA) and the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). This section includes specific discussions of removal actions, remedial actions, CERCLA exemptions, Federal Facility Agreements (FFAs), and the Community Environmental Response Facilitation Act (CERFA), a 1992 amendment to CERCLA.

Section A.3 discusses response programs and processes under Subtitles C, I, and D of the Resource Conservation and Recovery Act, as amended (RCRA) and a number of other laws having jurisdiction over environmental activities at BRAC installations. Such laws include the Toxic Substances Control Act, as amended (TSCA); the Clean Water Act, as amended (CWA); the Safe Drinking Water Act, as amended (SDWA); the Clean Air Act, as amended (CAA); the Federal Facility Compliance Act (FFCA), a 1992 amendment to RCRA; and several other laws relevant to environmental response actions and/or natural and cultural resources.

A.1 Current Legal Framework

The Base Closure and Realignment Act of 1988 (P.L. 100-526, 102 Stat. 2623) (BRAC 88), and the Defense Base Closure and Realignment Act of 1990 (P.L. 101-510, 104 Stat. 1808) (BRAC 91, 93 and 95), require the Department of Defense (DoD), or in specific cases other federal agencies, to comply with a variety of laws and associated regulations to effect federal real property disposal at most BRAC installations. Pertinent environmental legal provisions with jurisdiction at BRAC installations include:

  • CERCLA Section 120, which establishes a framework for responding to releases of hazardous substances, pollutants, or contaminants in all media at all installations, as well as specific requirements for property transfer at BRAC installations

  • Executive Order 12580 and the statutory provisions of the Defense Environmental Restoration Program (DERP), of which the Installation Restoration Program (IRP) is a sub-component

  • NEPA, which governs the federal evaluation of the environmental consequences of disposal (i.e., selling or transferring) of surplus federal property to the public or private sector

  • Other applicable statutes that protect natural and cultural resources, and govern environmental compliance on federal lands

The environmental legal framework resulting from compliance with the provisions of BRAC is depicted in figure A-1 and summarized in sections A.1.1 through A.1.4 below. CERCLA requirements, in conjunction with corrective action requirements under Subtitle C of RCRA, govern most environmental restoration activities. Requirements under Subtitles C, I, and D of RCRA, as well as TSCA, the CWA, the CAA, the SDWA, and other statutes, govern most environmental mission/operational-related and closure-related compliance activities. These compliance laws may also be applicable or relevant and appropriate requirements (ARARs) for selecting and implementing remedial actions under CERCLA. NEPA requirements govern the Environmental Impact Analysis and Environmental Impact Statement preparation for the disposal and reuse of BRAC installations.

A.1.1 CERCLA Section 120 Overview

Compliance with CERCLA Section 120 is required for all BRAC installations. CERCLA defines roles for the Environmental Protection Agency (EPA), appropriate State agencies, and the DoD Component.

To comply with CERCLA Section 120, the EPA must do (but is not limited to) the following:

  • Take steps to ensure that preliminary assessments (PAs) are conducted at each installation on the Federal Agency Hazardous Waste Compliance Docket (hereinafter referred to as "docket") [CERCLA Section 120 (d)]

  • Evaluate each installation for inclusion on the National Priorities List (NPL) in accordance with the NCP, using the criteria established in Appendix A of the NCP, referred to as the Hazard Ranking System (HRS) [CERCLA Section 120(d)]

  • Include any installation on the NPL if its HRS score is greater than or equal to 28.5 (see figure A-1) [CERCLA Section 120 (d)]

To comply with CERCLA Section 120, the DoD Component must do the following:

  • Commence a remedial investigation (RI) and feasibility study (FS) for each site on the NPL within six months of final NPL listing [CERCLA Section 120(e) (1)]

  • Enter into an interagency agreement (herein referred to as an FFA) with the EPA at each NPL installation, the agreement may also include appropriate state agencies, in order to establish the legal and administrative framework for environmental response actions [CERCLA Section 120(e) (2) ]; the agreement may also include state agencies

  • Commence substantial continuous physical on-site remedial action within 15 months of completing any NPL- required RI/FS [CERCLA Section 120(e)(3)] (Note: this is the final RI/FS for a site). For the purposes of this section, completion of an RI/FS has been determined to coincide with the ROD signature.

  • Comply with specified requirements governing the sale or other transfer of real property on which hazardous substances were stored for one year or more, or released or disposed of [CERCLA Section 120 (h)]. This includes requirements under CERFA for the identification of uncontaminated parcels of property [CERCLA Section 120 (h)(4)]

NPL listing of a BRAC installation directly invokes remedial requirements of the NCP [40 Code of Federal Regulations (CFR) Part 300]. Non-NPL BRAC installations on the docket may be evaluated for possible inclusion on the NPL, using the HRS.

Even if your installation is not included on the NPL, section 211 of the Superfund Amendments and Reauthorization Act (SARA, 10 U.S.C. Section 2701), and Executive Order 12580 require that your BRAC Cleanup Team address all sites in a manner consistent with CERCLA Section 120.

Your BRAC Cleanup Team should note that the property transfer requirements in CERCLA Section 120 (h), described further in section A.2.7, apply to both NPL and non-NPL installations. CERCLA Section 120(h) requires language stating that:

all remedial action necessary to protect human health and the environment with respect to any such [hazardous] substance remaining on the property has been taken

as a covenant in any property deed before title can be transferred to another party.

A more detailed discussion of CERCLA compliance and the hazardous substance response process defined in Subpart E of the NCP are described in section A.2.1.

A.1.2 Overview of Executive Order 12580, DERP, and IRP

In addition to CERCLA Section 120, the DoD Component must comply with Executive Order 12580 and DERP. Executive Order 12580, signed in January 1987, addresses delegation of duties and powers assigned to the President in CERCLA, and specifically accomplishes the following:

  • Delegates to DoD Components substantial authority and responsibility to carry out response actions, including cleanup

  • Delegates to DoD Components lead agency authority to select remedial actions consistent with CERCLA Section 121

  • Requires the development and use of an Administrative Record

  • Provides for public review and comment on remedial action plans

  • Delegates to DoD Components authority to seek information, entry, inspections, samples, or response actions with the concurrence of the Attorney General

  • Provides for CERCLA Section 104 removal authority

In accordance with SARA Section 211, DERP has three main objectives. As stated, these are as follows:

  1. The identification, investigation, research and development, and cleanup of contamination from hazardous substances, pollutants, and contaminants.

  2. Correction of other environmental damage (such as detection and disposal of unexploded ordnance) which creates an imminent and substantial endangerment to the public health or welfare or to the environment.

  3. Demolition and removal of unsafe buildings and structures, including buildings and structures of the Department of Defense at sites formerly used by or under the jurisdiction of the Secretary.

The IRP, a sub-component of DERP, addresses the first two objectives cited above. The IRP to date has been a CERCLA-based environmental restoration program. To that end, SARA Section 211 and Executive Order 12580 require that the IRP be conducted in a manner consistent with CERCLA Section 120. DERP requires the DoD to proceed expeditiously to remediate environmental contamination from hazardous substances, pollutants, and contents due to past practices. This includes accommodating environmental response processes under other federal and State statutes, as appropriate.

A.1.3 Overview of NEPA for Disposal and Reuse

Compliance with NEPA is required by section 2905 (c) of the Defense Base Closure and Realignment Act of 1990. Section 2905(c)(2)(A) states that the provisions of NEPA shall apply to:

  • ... actions of the Department of Defense ... during the process of property disposal...

In order to comply with NEPA for disposal of installation property, the DoD must comply with regulations in 40 CFR 1500-1508 developed by the Council on Environmental Quality (CEQ) and service-specific NEPA regulations. These regulations define the NEPA process for examining the potential impacts to the environment that may result from federal actions, in this case the decision to dispose of BRAC installation property and facilities to either public or private users. In preparing these analyses, reasonable reuse alternatives are identified and characterized for each BRAC installation. Environmental impacts associated with each alternative are disclosed, along with a preferred course of action. This disclosure analysis typically occurs through the development and finalization of an Environmental Assessment (EA) or an Environmental Impact Statement (EIS).

Elements of the general process for preparing a Disposal and Reuse EIS for BRAC installations are as follows (also see figure A-1):

  • EA---provides the decision maker with sufficient evidence and analysis for determining whether a Finding of No Significant Impact (FONSI) or EIS should be prepared

  • FONSI---a document that states why an action will not significantly affect the environment, thus voiding the requirement for an EIS; the FONSI includes a summary of the EA and notes any related environmental documents

  • Description of Proposed Action and Alternatives (DOPAA)---a document that describes the activities that must be analyzed in the EIS including any proposed community reuse plan for the installation; the DOPAA may also serve as the basis for the EIS statement of work

  • Notice of Intent (NOI)---a public notice that an EIS will be prepared and considered

  • Scoping---a public meeting conducted in the vicinity of the installation to determine the scope of the environmental issues to be addressed, and identify areas for detailed analysis in the EIS

  • Draft EIS (DEIS)---a document published for public review and comment containing data on the proposed action and alternatives and an interdisciplinary analysis of related environmental impacts (Interested parties have 45 days to review and comment on the DEIS. During this comment period, a public hearing is conducted to explain DEIS findings and received oral comments.)

  • Final EIS (FEIS)---a revision of the DEIS based on comments received which contains a description of the proposed action and alternatives, including the No-Action alternative; a description of the environment that would be affected by the proposed action and alternatives; and a description of the potential environmental consequences of the proposed action and alternatives

  • Disposal and Reuse Record of Decision (D&R ROD)---a concise summary for publication in the Federal Register of the decision made by DoD service component from among the alternatives in the FEIS

DoD NEPA policy for BRAC installations requires expedited production of any disposal and reuse EIS within 12 months of receipt of a community's final reuse plan. This policy, along with other DoD NEPA procedures and responsibilities, are discussed in DoD Guidance on Accelerating the NEPA Analysis Process for Base Disposal Decisions, contained in Appendix B.

A.1.4 Overview of Other Laws

In addition to CERCLA, the DoD Component is required to comply with federal and State environmental statutes, such as RCRA, TSCA, CWA, SDWA, CAA, and other federal and State laws that are the basis for ARARs.

  • RCRA (described in section A.3.1) establishes a framework for managing solid wastes, including procedures for responding to releases of hazardous wastes or hazardous constituents in all media. It also establishes a program for managing regulated substances, including petroleum in underground storage tanks (USTs). RCRA requirements apply to both NPL and non-NPL installations.

  • TSCA (described in section A.3.2) regulates specific chemical substances, such as polychlorinated biphenyls (PCBs) and asbestos.

  • CWA (described in section A.3.3) regulates the point and non-point source discharges of pollutants into waters of the United States.

  • SDWA (described in section A.3.4) establishes regulations to protect human health from contaminants in drinking water.

  • CAA (described in section A.3.5) regulates releases of specific substances into the air.

Information concerning State laws, the FFCA, and other statutes governing natural and cultural resources is presented in section A.3.6. A listing of some potential ARARs particular to CERCLA remedial actions can be found in section 4.8.1 of this Guidebook.

A.2 CERCLA Response Process

The overall goal of CERCLA is to protect human health and the environment where releases of hazardous substances, pollutants, or contaminants [defined in CERCLA Sections 101(14), 101(33)] have been documented. This goal has been expanded in NCP Section 300.430 (a)(1)(i), which states:

  • The national goal of the remedy selection process is to select remedies that are protective of human health and the environment, that maintain protection over time, and that minimize untreated waste.

To achieve this goal, specific cleanup objectives must be identified for all areas contaminated with hazardous substances. These objectives are then met by conducting removal actions, and selecting and implementing appropriate remedial actions that meet explicit criteria.

A.2.1 Overview of CERCLA and NCP Requirements

CERCLA requires a response in two instances, according to NCP Section 300.400 (a):

  • When there is a release of a hazardous substance into the environment

  • When there is a release into the environment of any pollutant or contaminant that may present an imminent and substantial danger to the public health or welfare

Given the broad authority of CERCLA, this means that at BRAC installations, CERCLA may apply to any waste source and/or site known to contain hazardous substances. CERCLA jurisdiction may be extended to pollutants and contaminants where imminent threats are identified. Additionally, and as a result of recent amendments to section 120(h) of CERCLA under CERFA, CERCLA jurisdiction with respect to property transfer has been extended to releases of petroleum products and their derivatives (including aviation fuel and motor oil) and uncontaminated parcels of property (see section A.2.6).

CERCLA sources, according to the NCP, are areas where hazardous substances have been deposited, stored, released, disposed of, or placed, plus those soils that have become contaminated from the migration of hazardous substances. Example source types include the following:

  • Surface impoundments

  • Landfills

  • Tanks and containers (other than drums)

  • Drums

  • Contaminated soil

  • Waste piles

CERCLA sites include both source areas and areas of migration where hazardous substances have come to be located. The NCP definition of "site" is restricted to the actual geographic area covered by a source and the extent of associated contamination as delineated during site investigations. For "onsite" response actions, this definition is expanded to include suitable areas in very close proximity to the contamination that are necessary for implementing the response action. As such, the federal facility site does not, in theory, include areas within base property boundaries that are uncontaminated or not part of operable units (OUs). This concept is illustrated in figure A-2. Therefore, any fence-to-fence definition of an NPL site should be updated, if possible, by the BRAC Cleanup Team to correspond with results of investigation. This may also require a modification of site definition in an FFA.

For BRAC installations exercising the Presidential authority under CERCLA Section 104, and Executive Order 12580 (see section A.1.2), CERCLA Section 120 and NCP Subpart E require the following:

  • Development of an Administrative Record

  • Development of a Community Relations Plan (CRP) for conduct of community relations during RI/FS activities, and during and after remedy selection for all OUs. CERCLA Section 120 (f) specifically requires the DoD Component to provide State and local authorities with the opportunity to participate in the planning and selection of response actions. A Technical Review Committee (TRC) and TRC Working Panel (the latter is required by SARA Section 211) are established to meet this requirement. The policy, procedures and responsibilities of the TRC and TRC working panel have been augmented by DoD Guidance on Improving Public Involvement in Environmental Cleanup at Closing Bases contained in appendix B (e.g., establishment of Restoration Advisory Boards).

  • Scoping of all response actions

  • Development of Work Plans; Health and Safety Plans (HSPs); and Sampling and Analysis Plans (SAPs), which include Quality Assurance Project Plans (QAPPs), and Field Sampling Plans (FSPs)

  • Characterization of all sources and associated extent of contamination through the performance of RI efforts, and identification of target areas (e.g., those that exceed health-based regulatory criteria) requiring remediation

  • Assessment of releases of hazardous substances, pollutants, or contaminants for potential removal actions (see section A.2.2)

  • Development of Action Memoranda or Engineering Evaluation/Cost Analysis (EE/CA) documentation for actual removal actions

  • Performance of risk assessment(s) (both human health and environmental) to evaluate baseline risk under a "no action" alternative, and to focus the remedy selection process

  • Identification of ARARs

  • Performance of Health Assessments (HAs) by the Agency for Toxic Substances and Disease Registry (ATSDR)

  • Assessment by Natural Resource Trustees (NRTs) of natural resource damages, if any, that result from releases of hazardous substances and affect resources for which the DoD is not the designated NRT

  • Evaluation of remedial alternatives against five CERCLA Section 121 statutory requirements and nine explicit remedy selection criteria in a site- or OU-specific FS (table A-1)

  • Development of a Proposed Plan (PP) of action; and a Record of Decision (ROD) or decision memorandum in coordination with all regulators and the public

  • Development of a remedial management strategy, followed by execution of a remedial design (RD) and remedial action (RA) for each site or OU

These requirements, as they relate to specific phases of the CERCLA administrative process, are shown in figure A-3.

As part of the Bottom Up Program Review (Step 2) of the Five Step BCP process (see section 3 of this Guidebook), your BRAC Cleanup Team, together with your assisting Project Team, should consider the following recommended approaches to expedite CERCLA response actions to support timely reuse and development:

  • Focus all activities during the RI/FS on determining the appropriate response action in light of your community's reuse plan. Appropriate response actions are those that protect human health and the environment, attain ARARs (unless waivers are approved), and satisfy the statutory preference for treatment and reduction in the mobility, toxicity, and volume of wastes.

  • Focus all pre-ROD activities, beginning with early scoping, on meeting the five statutory requirements in CERCLA Section 121 and the nine complementary criteria in the NCP [NCP Section 300.430(e) (9) (iii) ] listed in table A.1. Directing all RI/FS activities with these criteria in mind will assist the BRAC Cleanup Team in focusing the remedy selection process, and will assist these teams in meeting CERCLA Section 120(h) requirements for property disposal, because the goal of these criteria is the selection of remedial actions that are "protective of human health and the environment."

  • Involve the ATSDR and NRTs early in the planning process to ensure their concerns are addressed up front

  • Define OUs in accordance with CERCLA, and the scope of removal and remedial activities to be completed for each


STATUTORY REQUIREMENTS

Remedial Actions must do the following:

  • Be protective of human health and the environment

  • Attain ARARs (or provide grounds for invoking a waiver)

  • Be cost-effective

  • Utilize permanent solutions and alternative treatment technologies to the maximum extent practicable

  • Satisfy the preference for treatment that reduces contaminant mobility, toxicity, and volume as principal elements (or provide explanation otherwise)

[CERCLA Section 121]


NCP CRITERIA

The remedy selection process involves the evaluation of alternative remedial actions using the following nine criteria:

Threshold Criteria

  • Overall protection of human health and the environment

  • Compliance with ARARs

Primary Balancing Criteria

  • Long-term effectiveness and permanence

  • Reduction of toxicity, mobility, or volume

  • Short-term effectiveness

  • Implementability

  • Cost

Modifying Criteria

  • State acceptance

  • Community acceptance

[40 CFR Section 300.430 (e) (9) (iii)]


Table A-1

Criteria for Selecting Remedial Actions

  • Integrate CERCLA requirements with RCRA requirements as necessary under an FFA for NPL installations

  • Identify CERCLA-excluded sources and releases, and address them under the appropriate response program in accordance with Program Review Item 3

  • Identify sources or sites requiring no further investigation or action and drop them from active oversight

  • Identify uncontaminated areas in accordance with CERFA

  • Determine risk-based cleanup criteria based on future use of installation property

  • Initiate early actions to eliminate or otherwise address sources or sites while investigation continues, consistent with the Superfund Accelerated Cleanup Model (SACM) initiated by EPA

  • Identify opportunities for the application of presumptive remedies using applicable technology to expedite solutions

A.2.2 Removal Actions

Your BRAC Cleanup Team should evaluate contaminated sites for possible removal actions to minimize or eliminate risk to human health and the environment and to facilitate property disposal and reuse. BRAC Cleanup Teams should ensure that removal actions comply with ARARs to the maximum extent practicable, emphasize treatment of wastes onsite, and are consistent with any subsequent remedial actions selected. Your BRAC Cleanup Team should consult the following reference for additional information: Superfund Removal Procedures: Action Memorandum Guidance, September 1990, EPA/9360.3-01.

What is a removal action? CERCLA Section 101 (23) states that:

  • the terms "remove' or "removal" means [sic] the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary [sic] taken in the event of the threat of a release.

  • Removal actions include security fencing or other access-limiting actions, alternate water supplies, the relocation of individuals, excavation of contaminated materials, installation of controls on contaminant migration, and other actions consistent with a final remedy.

Where are the provisions for removals, and what are they? The provisions for removals are found in CERCLA Section 104 (a) (1) (A and B), 104 (a) (2), and 122 (settlements/agreements with potentially responsible parties). As required by these sections, the NCP defines the requirements for removal actions, which are to conduct removal site evaluations at release locations [NCP Section 300.410 ], and to meet the threshold criteria for conducting removal actions [NCP Section 300.415 (b) (1)]. The basic criterion for a removal in the NCP is embedded in the following language:

At any release ... where the lead agency [DoD Component] makes the determination ... that there is a threat to public health or welfare or the environment.

The NCP specifies the following additional criteria for consideration when determining the appropriateness of a removal action [NCP Section 300.415 (b) (2)]:

  • Hazardous substances, pollutants, or contaminants in drums, barrels, tanks, or other bulk storage containers that may pose a threat of release

  • Actual or potential exposure to nearby populations, animals, or the food chain from hazardous substances, pollutants, or contaminants

  • Actual or potential contamination of drinking water supplies or sensitive ecosystems

  • Actual contamination of wetlands

  • Contamination of other environmental receptors

  • High levels of hazardous substances, pollutants, or contaminants in soils largely at or near the surface that have the potential to migrate

  • Weather conditions that may cause hazardous substances, pollutants, or contaminants to migrate or be released

  • Threat of fire or explosions

The NCP mentions three types of removal actions [NCP Section 300.415]:

  • Emergency removals in cases where there is an immediate risk to public health, welfare, or the environment

  • Six-month time-critical removals, which require the development of an Action Memorandum describing the removal, an Administrative Record file, and community involvement

  • Twelve-month non-time-critical removals, which require the completion of an EE/CA, an Administrative Record file, and community involvement

Note that the first two types of removal actions do no require EE/CAs.

A.2.3 Interim Remedial Actions

BRAC Cleanup Teams should evaluate contaminated sites for interim remedial actions to minimize or to significantly reduce risk to human health and the environment during ongoing investigatory efforts.

What is a remedial action? Section 101 (24) of CERCLA states that:

The terms "remedy' or "remedial action" mean those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment.

Remedies, or remedial actions (RAs), are selected under CERCLA by the signing of a ROD, which signifies that each of the preceding steps in the remedy selection process has been satisfied. The NCP, however, distinguishes between interim and final OUs [NCP Section 300.430 (a)(1)(ii)(B)], and EPA guidance provides for both approaches.

Interim ROD OUs, which are more fully described in section 4.8, take advantage of an opportunity to reduce risk significantly during ongoing investigatory efforts. They are consistent with EPA initiatives under SACM. The following characteristics apply to interim OUs:

  • Their objective is to select early remedial actions.

  • They do not require full completion of the RI/FS process, and are typically followed by additional OUs that complete remaining steps for the OU

  • They require a PP, a public comment period, and a ROD.

  • They result in early remedial action starts.

  • They do not necessarily constitute "all" remedial actions required for a target area.

The appropriateness of selecting an interim ROD to facilitate property disposal and reuse at BRAC installations or to control contamination should be evaluated. Interim ROD remedial actions may not be appropriate for property disposal, unless

  • Source-control actions are fully implemented

  • Groundwater remedial actions are performance based and sufficient to control plume migration

The above discussion also applies to interim corrective measures provided for in proposed regulations under Subpart S of RCRA [ 40 CFR Section 264.540 ] (see section A.3.1.1).

A.2.4 Final Remedial Actions

Final remedial actions are those actions that close out a contaminated site or OU once they have been selected and implemented. Use final OU response actions as the approach by which all remedial actions necessary to protect human health and the environment are selected and taken. Limited use of removal actions and interim RODs may, in certain situations, provide a basis for covenant requirements in CERCLA Section 120 (h) (3) governing property transfer. Final OUs require the following:

  • Full completion of the RI/FS process

  • A PP, a comment period, and a ROD

  • RD, construction, and operation and maintenance

  • While longer timeframes are involved in starting final remedial actions (as compared with interim OUs), your BRAC Cleanup Team should ensure that the actions themselves are fully consistent with the transfer criteria prescribed in CERCLA Section 120(h), as amended by CERFA.

A.2.5 CERCLA Exemptions

Because petroleum products have been used extensively on BRAC installations, questions frequently arise regarding the appropriate authority for responding to releases of these products. Are these products exempt from CERCLA?

An answer to this and other questions requires an understanding of the definition of "hazardous substance" and "pollutant or contaminant."The definition of hazardous substance in CERCLA Section 101 (14):

does not include petroleum, including crude oil or any fraction thereof

unless the substance is specifically listed or designated as a hazardous substance under other statutes, such as RCRA or CAA. This same language and rationale apply to the terms "pollutant or contaminant" in CERCLA Section 101(33):

If the substance in question meets the definition of petroleum in CERCLA Sections 101(14) and 101(33), then CERCLA's jurisdiction does not extend to such releases.

Therefore, DoD Components responses to releases of petroleum products should be conducted in accordance with either UST regulations under RCRA Subtitle I or State laws that apply to petroleum (see section A.3.1.2). Note that this does not nullify any DoD commitments made pursuant to pre-existing FFAs/IAGs that include petroleum sites that would otherwise be within the scope of the CERCLA exclusion. Your BRAC Cleanup Team may decide, however, to remove any petroleum sites from the scope of FFAS for quicker response under other programs.

A.2.6 Federal Facility Agreements

FFAS, an expansion of the agreements contemplated by CERCLA Section 120(e) (2) for DoD sites (see section A.2.1 and figure A-2 for definition) on the NPL, may have the following purposes:

  • To ensure that the environmental impacts associated with past and present activities at the site are thoroughly investigated, and that appropriate remedial action is taken as necessary to protect public health, welfare, and the environment

  • To establish a procedural framework and schedule for developing, implementing, and monitoring appropriate response actions at the site in accordance with CERCLA, the NCP, Superfund guidance and policy, RCRA, RCRA guidance and policy, and applicable State laws

  • To facilitate cooperation, exchange of information, and participation of the DoD, EPA, and appropriate State agencies in such actions

Specific purposes of the FFA focus the environmental restoration efforts at an installation by requiring the DoD Component to do the following:

  • Identify and propose OU alternatives to the EPA and the State

  • Conduct an RI/FS in support of remedy selection for release of hazardous substances, pollutants, or contaminants

  • Identify schedules for response actions

  • Implement selected RAs in accordance with federal and State laws

  • Expedite the cleanup process to an extent consistent with that of protection of human health and the environment

The typical sections of an FFA are listed in table A-2. The following FFA sections are especially important.

Jurisdiction. This section indicates that parties enter into the FFA under applicable sections of CERCLA, RCRA, DERP, NEPA, and Executive Order 12580. Thus it serves to underline the broad regulatory authority of the agreement.

Definitions. This section typically contains definitions for several important and related terms: "Area of Concern" (AOC), "Site," "Facility," and "Federal Facility." "AOC" typically corresponds to a geographic area of contamination, and has the same definition as site in the NCP and 55 FR 35504, 30 August 1990. The terms "site" and "Federal facility" in FFAs, however, are typically defined as the entire installation. The term "facility" is taken from CERCLA Section 101(9) and has two meanings: either the contaminated areas or the entire installation. It is important to understand the precise legal definition of these terms when discussing disposal or transfer procedures for uncontaminated areas at your installation.

Consultation: Review and Comment Process.(for draft and final documents). This section identifies primary and secondary documents, and specifies review procedures among parties for each. Table A-3 identifies the FFA title for each document. EPA typically requires between 45 and 60 days for review of each primary document. The DoD has a similar period for document review and revision. Your BRAC Cleanup Team should consider every possible opportunity to shorten this review period by holding face-to-face review meetings.

Deadlines.Deadlines apply to draft primary documents and are typically incorporated into an appendix of the FFA. Otherwise, deadlines for the completion of these documents are to be proposed by the DoD according to the provisions of the FFA. These deadlines are maximum dates for the submittal of documents. Your BRAC Cleanup Team is challenged to develop a Master Restoration Schedule in chapter 5 of your BRAC Cleanup Plan (BCP) which significantly improves upon FFA deadlines.


  1. Purpose

  2. Parties

  3. Jurisdiction

  4. Definitions

  5. Determinations (Findings of Fact)

  6. Work to be Performed

  7. Consultation: Review and Comment Process

  8. Deadlines

  9. Extensions

  10. Force Majeure

  11. Emergencies and Removals

  12. Dispute Resolution

  13. Enforceability

  14. Stipulated Penalties

  15. Funding

  16. Exemptions

  17. Statutory Compliance/RCRA-CERCLA Integration

  18. Project Managers

  19. Permits

  20. Quality Assurance

  21. Notification

  22. Data and Document Availability

  23. Release of Record

  24. Preservation of Records

  25. Access to Federal Facility

  26. Public Participation and Community Relations

  27. Five Year Review

  28. Transfer of Real Property

  29. Amendment or Modification of Agreement

  30. Termination of Agreement (and Satisfaction)

  31. Covenant Not to Sue and Reservation of Rights

  32. Other Claims

  33. Recovery of EPA Expenses

  34. State Support Services

  35. State Participation Contingency

  36. Effective Date and Public Comment

  37. Base Closure

  38. Appendices and Attachments (commonly containing previously established deadlines, document outlines, site maps, a statement of facts, a status summary of base activities, a list of sites or areas of concern)

Table A-2

Sections of a Generic Federal Facility Agreement


Extensions. This section allows the DoD Component or other parties to the FFA to extend deadlines and schedules for primary documents when "good cause exists." At installations where OUs change in scope, definition, or priority in response to a closure announcement, this provision of the FFA may serve to allow adjustments in deliverable dates for certain site-specific IRP documents in lieu of broad changes in OUs.

Dispute Resolution. This section sets forth procedures for resolving disputes, beginning at the RPM level, through the upper management of EPA and the DoD Component. Your BRAC Cleanup Team is challenged, as part of the 5-Step BCP process, to avoid any protracted disputes by resolving issues onsite and in real time.

Statutory Compliance/RCRA-CERCLA Integration. This section states that all parties seek to integrate CERCLA response actions and RCRA corrective actions, obviating the need for any additional corrective action under RCRA. The point of this provision is that releases of "hazardous substances, hazardous wastes, pollutants, or contaminants" are comprehensively addressed by the FFA, thus minimizing duplication of efforts from regulatory overlap.

Project Managers (or Notification). This section indicates who is in charge of daily FFA management. For the DoD Component, it is the installation and the BRAC Environmental Coordinator on the BRAC Cleanup Team.

Amendment or Modification of Agreement. Most FFAs contain the following language in this section:

This Agreement can be amended or modified solely upon written consent of all Parties. Such amendments or modifications may be proposed by any Party and shall be effective the third business day following the day the last Party to sign the amendment or modification sends its notification of signing to the other Parties. The Parties may agree to a different effective date.
 

Some FFAs may contain additional language that requires public comment on significant changes.

Your BRAC Cleanup Team should consider the following recommended approaches with regard to FFAs as part of your Bottom Up Program Review (particularly Program Review Item 3):

  • For installations on the NPL, ensure integration of all overlapping RCRA corrective action requirements, CERCLA requirements, and State regulations in an FFA. This will limit or eliminate the potential for separate or conflicting regulatory requirements. Operating Solid Waste Management Units (SWMUs) are to be regulated under RCRA authority as compliance activities. Releases associated with abandoned or inactive SWMUs should be addressed as restoration activities in a manner that mutually satisfies both RCRA corrective action and CERCLA response action requirements.

  • Use FFA Extension and/or Amendment provisions to incorporate broad changes to OU definitions and schedules. A BRAC installation may be conducting its environmental restoration activities under a previously negotiated FFA. Closure timetables and property reuse and disposal priorities may conflict with the investigation and cleanup sequences mandated by the FFA, and require significant modification.

A.2.7 CERFA Compliance

Enacted on 19 October 1992, the Community Environmental Response Facilitation Act [CERFA, P.L. 102-426] amends section 120 (h) of CERCLA by adding the following:

  • Minimum procedures and strict timelines for identifying uncontaminated property at closing military installations [new section 120 (h) (4) ]. These established procedures require the EPA (for BRAC installations on the NPL), or the "appropriate State official" (for non-NPL installations), to concur with uncontaminated property determinations by the DoD.

  • Language clarifying the interpretation of the covenant in section 120 (h) (3) (B) (i) that all remedial action has been taken to protect human health and the environment [modified section 120(h) (3)].

  • Requirements for federal agencies (e.g., the DoD Component) to notify states of leases that will be in effect after the scheduled closure date [new section 120(h) (5)].

Compliance with CERFA is critical for accomplishing the transfer of uncontaminated and remediated property. For BRAC 88 and 91 installations, identification of uncontaminated property and concurrence by the appropriate CERFA-certifying agent must be completed by 18 April 1994. Failure by the State to respond within 90 days of this statutory timeframe will be considered concurrence. The EPA has no such statutory deadline, but has also agreed as a matter of policy to respond within 90 days. For BRAC 93 and 95 realignment and closure bases, identification and concurrence must be completed no later than 18 months after the date by which Congress must enact a joint resolution disapproving the closure or realignment if Congress so desires [CERCLA Section 120(h)(4)(C)(iii)].

DoD Guidance on the Implementation of the Community Environmental Response Facilitation Act is included in appendix B.

A-3 Other Environmental Response Processes

The DoD Component is required to comply with all federal and State regulations that apply during environmental response actions. The following sections focus on selected non-CERCLA authorities that may apply to environmental response activities at BRAC installations. It is important that your BRAC Cleanup Team consult the regulations summarized in these sections to determine which sites will be addressed under UST, TSCA, CWA, or other response processes consistent with Program Review Items 3, 7, and 16 (see section 3 of this Guidebook).

A.3.1 RCRA Response Process

All BRAC installations are subject to RCRA, particularly because most generate, transport, store, treat, or have disposed of hazardous waste. Potential conflicts and overlap with other environmental programs may occur. This potential was acknowledged in the EPA's July 1990 RCRA Implementation Study, which concluded as follows:

The [hazardous waste] program has not had time to examine potential regulatory overlaps inconsistencies with other environmental programs. This type of analysis is inherently difficult, given the different statutory frameworks for the environmental programs.
 

Given the potential for overlap with programs like CERCLA, it is important to understand the fundamentals of RCRA to ensure that environmental restoration efforts are comprehensive, and distinguished from compliance activities. The overall framework of RCRA can be understood by providing answers to the three questions below:

  1. What are the goals of RCRA?

  2. What programs exist under RCRA?

  3. How do these apply to NPL and non-NPL BRAC installations?

RCRA was passed in 1976 and amended by the Hazardous and Solid Waste Amendments (HSWA) in 1984. Enacted to ensure that solid wastes are managed in an environmentally sound manner, the broad goals of RCRA are as follows:

  • Protect human health and the environment

  • Reduce waste, and conserve energy and natural resources

  • Reduce or eliminate the generation of hazardous waste as expeditiously as possible

To achieve these goals, three distinct yet interrelated programs exist under RCRA. These are depicted in figure A-4, and described as follows:

  • Subtitle C. A program that established a "cradle-to-grave" management system to regulate hazardous waste from the moment of generation until ultimate disposal; corrective action requirements for all SWMUs at a Treatment, Storage or Disposal (TSD) facility are described in a 27 July 1990 proposed rule in 55 CR 30797

  • Subtitle I. A program established by HSWA that regulates petroleum products and hazardous substances [as defined in CERCLA Section 101 (14)] in USTs (see section A.3.1.2)

  • Subtitle D. A federal program to regulate proper disposal of solid waste through State grants (see section A. 3.1.3)

How do these programs apply to BRAC installations? The answer to this question is important for both NPL and non-NPL installations, and involves a closer look at the Subtitle C, Subtitle I, and Subtitle D programs.


A.3.1.1 Subtitle C

The requirements and coverage of RCRA's Subtitle C program were greatly expanded by HSWA. Before HSWA, the RCRA corrective action program addressed only groundwater released from RCRA-regulated hazardous waste units, such as active surface impoundments, tanks, and waste piles. With its passage, HSWA provided authority for the investigation and restoration of past waste sites at DoD Component installations, creating a corrective action program substantially equivalent to that under CERCLA. The similarity between the proposed RCRA Subtitle C Subpart S process and that of CERCLA is illustrated in figure A-5. The requirements governing the corrective action process were proposed on 27 July 1990, modifying 40 CFR Part 264 in accordance with RCRA Sections 3004(u) and (v), 3008(h) and 9003 (h). This proposed rule under Subtitle C is called Subpart S, and is analogous in many ways to the NCP for CERCLA. It also amends 40 CFR Part 270 permit requirements, and makes conforming changes in Parts 264 and 265.

The HSWA corrective action program addresses releases of hazardous wastes or constituents to all media, both on and off a facility, and all sources, or SWMUs, across a facility. This authority equates closely with CERCLA's ability to respond to releases of hazardous substances, pollutants, or contaminants.

Are CERCLA sources and RCRA SWMUs the same? They can be. A SWMU refers to:

any discernible unit at which solid wastes have been placed at any time, irrespective of whether the unit was intended for the management of solid or hazardous waste. Such units include any area at a facility at which solid wastes have been routinely and systematically released

[40 CFR Section 264.501, as proposed.]

It follows from this definition that a SWMU includes the following:

  • Active and inactive units

  • Units that no longer manage solid waste

  • RCRA-regulated units

  • Units exempt from RCRA requirements

  • Routine and systematic releases from processes

  • Recycling/reclamation operations

  • Process sewers/ditches

A SWMU, however, does not include leakage from product storage, contamination from one-time spills, or firing ranges and impact areas. Given the broad definition of SWMUs, however, it is reasonable to conclude that they can encompass most CERCLA sources. BRAC Cleanup Teams should note that there are some exceptions. RCRA's hazardous constituent lists [40 CFR Part 261, Appendix VIII] includes a few items that are not addressed as hazardous substances by CERCLA (e.g., aflatoxins).

Are RCRA hazardous wastes or constituents the same as CERCLA hazardous substances, pollutants, or contaminants? According to the broad definition of releases subject to CERCLA, it is apparent that RCRA-regulated materials are a large subset of the CERCLA universe.


The precise definition of RCRA wastes subject to Subtitle C includes all solid wastes that are listed and/or characteristic. Table A-4 provides a short overview of these listed and characteristic wastes.

For DoD Component installations, the RCRA corrective action process in Subpart S of the regulations may require the following:

  • Identification of all SWMUs through conduct of an installation-wide RCRA Facility Assessment (RFA) by the EPA (or perhaps by the DoD Component with regulatory oversight)

  • Characterization of SWMUs requiring action through conduct of a RCRA Facility Investigation (RFI)

  • Evaluation of alternative corrective measures, using the following remedy evaluation factors, in a Corrective Measures Study (CMS):

    • Long-term reliability and effectiveness

    • Reduction in toxicity, mobility, or volume

    • Short-term effectiveness

    • Implementability

    • Cost


  • Development of a Corrective Action Information Repository (satisfied by the Administrative Record)

  • Selection of a recommended corrective measure, and documentation via a permit modification in coordination with regulators

  • Development of corrective measure designs and actions for each OU or SWMU

In addition to the above, RCRA and Subpart S specifically require the following:

  • Development of project management and technical plans

  • Development of CRPs

  • Assessment of SWMUs for interim measures

  • Performance of an exposure assessment

  • Identification of action levels for corrective action and media cleanup standards

Given the similarity of the above requirements to those of CERCLA and the NCP, the following recommended approaches should be considered by your BRAC Cleanup Team as a general response strategy for environmental restoration at non-NPL installations:

  • To the extent possible in the Bottom Up Program Review, establish or adopt a consistent procedural framework for addressing releases of "hazardous substances, hazardous wastes, pollutants, or contaminants" (Your BRAC Cleanup Team should strive for RCRA Subtitle C/CERCLA integration at all levels of response)

  • Inventory all potential sources of waste from the perspective of both CERCLA and RCRA corrective action programs; supplement base-wide source discovery efforts, if necessary, to ensure discovery of all potential SWMUs and CERCLA sources


LISTED WASTES

There are three lists of hazardous waste in RCRA regulations. These are as follows:

  • Nonspecific source wastes. These are generic wastes, commonly produced by manufacturing and industrial processes. Examples from this list include spent halogenated solvents used in degreasing and wastewater treatment sludge from electroplating process [40 CFR Section 261.31].

  • Specific source wastes. This list consists of wastes from specifically identified industries such as wood preserving, petroleum refining, and organic chemical manufacturing. These wastes typically include sludges, still bottoms, wastewaters, spent catalysts, and residues (e.g., wastewater treatment sludge from the production of pigments) [ 40 CFR Section 261.32].

  • Discarded commercial chemical products. This list consists of specific discarded commercial chemical products, manufacturing chemical intermediates, or off-specification commercial chemical products. It can include chemicals such as chloroform and creosote, acids such as sulfuric acid and hydrochloric acid, and pesticides such as kepone.[40 CFR Sections 261.33 (e) and (f)]

CHARACTERISTIC WASTES

RCRA also defines hazardous wastes in terms of their properties. Four characteristics of hazardous waste are as follows [RCRA Section 1004(5)][40 CFR Part 261]:

  • Ignitability

  • Corrosivity

  • Reactivity

  • Toxicity via toxic characteristic leaching procedure

Moreover, mixtures of solid and listed hazardous waste are considered hazardous.

HAZARDOUS CONSTITUENTS

Lists of hazardous constituents are contained in two references:

  • Appendix VIII of 40 CFR Part 261

  • Appendix IX of 40 CFR Part 264

Table A-4

What Are Hazardous Wastes or Constituents?


  • Identify sources or sites requiring no further investigation or action and drop them from active oversight

  • Coordinate with the regulators on the timing and results of any RFAs, and anticipate resultant permitting requirements in the BCP

  • Focus all RFI/CMS activities under RCRA Subtitle C on the five evaluation factors [40 CFR Section 264.525 (b) ], and the overall determination of the appropriate corrective measure that is consistent with the remedy standards in 40 CFR Section 264.525 (a) (see table A-1), and the criteria in the NCP (see table A-5)

  • Identify opportunities for presumptive remedies through the application of technologies to expedite corrective action

  • Identify Corrective Action Management Units (CAMUs) and Temporary Unit (TUs) to facilitate hazardous waste management activities at NPL and non-NPL BRAC installations in accordance with final corrective action regulations (40 CFR 260, et al.) issued on 16 February 1993 at 58 FR 8657

A.3.1.2 Subtitle I

The UST program was created by HSWA to regulate both petroleum products and hazardous substances. Subtitle I of RCRA regulates USTs that contain petroleum products (including gasoline and crude oil) and any substance defined as hazardous under CERCLA Section 101 (14). It is important to note that Subtitle I does not, however, regulate tanks that store RCRA hazardous wastes; such tanks are regulated under Subtitle C of RCRA.

Subtitle I required that EPA develop both performance standards for new tanks and regulations for release detection, release prevention, tank closure, and corrective action at all UST sites. These regulations have been promulgated and, pursuant to RCRA Section 9004, can be delegated to states pending approval of individual State programs.

Figure A-6 indicates that there are several regulatory authorities that apply to USTs, depending on the contents of the tank and nature of the release. Where applicable, regulations under Subtitle I of RCRA should be followed as the preferred response mechanism for addressing contamination resulting from most USTs. Decisions to address UST releases under other regulatory programs and process should be made by your BRAC Cleanup Team during its Bottom Up Program Review (e.g., Program Review Item 3 in section 3 of this Guidebook).

A.3.1.3 Subtitle D

The Subtitle D program under RCRA was created to encourage and regulate nonhazardous solid waste management practices that promote environmentally sound disposal methods, maximize the reuse of recoverable resources, and foster resource conservation. To achieve these goals, EPA established both minimum technical standards for solid waste management facilities (e.g., Subtitle D Criteria) and a program under which participating states may develop and implement solid waste management plans.

The regulations for State plans are found in 40 CFR Part 256. They outline the minimum requirements for State plans and detail how these plans are approved by EPA.


REMEDY STANDARDS

Corrective measures must do the following:

  • Protect human health and the environment

  • Attain media cleanup standards

  • Waste or constituents control sources of releases to reduce or eliminate further release of hazardous

  • Comply with waste management standards

[40 CFR Section 264.525(a)]

EVALUATION FACTORS

The remedy selection process involves the evaluation of alternative corrective measures using five evaluation factors:

  • Long-term reliability and effectiveness

  • Reduction in toxicity, mobility, or volume

  • Short-term effectiveness

  • Implementability

  • Cost

[40 CFR Section 264.525(b)]

Table A -5

Criteria for Selecting Corrective Measures


Subtitle D Criteria for solid waste disposal facilities are found in 40 CFR Part 257, titled "Criteria for Classification of Solid Waste Disposal Facilities and Practices." The existing Part 257 Criteria include general environmental performance standards addressing eight major topics:

  • Floodplains

  • Endangered species

  • Surface water

  • Groundwater

  • Land application

  • Disease transmission

  • Air

  • Safety

As a result of HSWA, however, these criteria were revised to improve the safety of existing and future municipal solid waste landfills. Revised solid waste disposal facility criteria were promulgated in final form on 9 October 1991, in 45 FR 50977 through 51119. This rule added a new Part 258 to Subtitle D regulations, which sets forth revised minimum federal criteria for municipal solid waste landfills (MSWLFs), including location restrictions, facility design and operating criteria, groundwater monitoring requirements, corrective action requirements, financial assurance requirements, and closure and post-closure core requirements.

New Subtitle D Criteria for MSWLFs address all categories of control included in hazardous waste regulations under Subtitle C of RCRA, but are less stringent and therefore more flexible, particularly in landfill design and closure requirements. In addition, the new criteria do the following:

  • Provide an exemption from complying with design criteria and groundwater and corrective action requirements for small MSWLFs (e.g., those at which an annual average of 20 tons or less of municipal solid waste are disposed of daily)

  • Become effective for operating MSWLFs on 9 October 1993; they do not apply to MSWLFs that were inactive on 9 October 1991, and only partially apply (e.g., final cover requirements) to MSWLFs receiving waste up to 9 October 1993

  • Specify that the relevant point of compliance for groundwater protection standards may be up to 150 meters from the boundary of the landfill and must be on land owned by the owner of the landfill

EPA's intent in promulgating the new Criteria for MSWLFs is that the corrective action required under Part 258 will result in an MSWLF not being subject to CERCLA liability when a release is prevented or remediated (see 56 FR 51092).

The 9 October 1991 rulemaking also amended 40 CFR Part 257 for MSWLFs, indicating that they are no longer subject to the Part 257 Criteria. The Part 257 Criteria are otherwise unchanged with respect to their applicability, and remain in effect for all other solid waste disposal facilities and practices (e.g., oil wastes, hydrocarbon-bearing soil, and fuel).

Where applicable, regulations under Subtitle D of RCRA (40 CFR Parts 257 and 258) should be followed as the preferred response mechanism for addressing contamination resulting from nonhazardous solid waste (e.g., inactive and operating MSWLFs). Response mechanism determinations for addressing nonhazardous waste sources or sites at BRAC installations should be made by your BRAC Cleanup Team during its Bottom Up Program Review (e.g., Program Review Item 3 in section 3 of this Guidebook).

A.3.2 Toxic Substances Control Act (PCBs and Asbestos)

TSCA authorizes EPA to establish specific regulations for existing and new chemical substances and mixtures. Under TSCA Section 6(e), the EPA has issued rules establishing storage, disposal, and cleanup requirements for PCBs and asbestos, two substances commonly present on DoD Component installations.

Requirements for PCBs are found in 40 CFR Part 761. These requirements cover PCB disposal and storage requirements, but do not include requirements for spills, leaks, or other uncontrolled discharges. However, EPA has published a nationwide TSCA PCB spill cleanup policy [52 FR 10688, 2 April 1987; 40 CFR Part 61, Subpart G] that establishes guidelines for spill cleanups.

Where PCB sources are identified on a BRAC installation, two alternative response mechanisms are available:

  • Response under CERCLA with TSCA requirements as an ARAR

  • Response under TSCA itself, since provisions of TSCA have jurisdiction over PCBs

Where applicable, regulations under TSCA should be followed as the preferred response mechanism for addressing PCB contamination. Response mechanism determinations for addressing PCB sources or sites at BRAC installations should be made by your BRAC Cleanup Team during the Bottom Up Program Review (see Program Review Item 3 in section 3 of this Guidebook).

In addition, regulations under TSCA (Subpart M of 40 CFR Part 61) should be followed as the preferred response mechanism for remediation of asbestos sources. Asbestos requirements are directed at the disposal of wastes from the demolition of buildings or equipment. Response mechanism determinations for addressing asbestos sources at BRAC installations should be made by your BRAC Cleanup Team during the Bottom Up Program Review (see Program Review Item 3 in section 3 of this Guidebook).

A.3.3 Clean Water Act

The CWA regulates point source and non-point source discharges into surface waters and requires the establishment of criteria and standards to protect water quality and achieve national performance standards. The CWA also contains a spill response mechanism for spills in navigable waters [40 CFR Part 117], which is tied to the NCP and amendments to the CWA under the Oil Pollution Act of 1990. In addition, it requires the establishment of a regulatory permitting program to enforce these standards. At DoD installations, one such requirement includes permits under the National Pollutant Discharge Elimination System (NPDES) program for "the discharge of a pollutant or pollutants into any waters of the United States" [40 CFR Section 122.21 from any point source. These permits contain the following:

  • Discharge prohibitions

  • Effluent limitations

  • Self-monitoring reporting requirements

  • Design, operation, and maintenance requirements

Permitted discharges under the NPDES program are likely to continue at installations during environmental restoration activities. Compliance with permit requirements should occur so as not to conflict with restoration activities at any installation. To ensure this is the case, during its Bottom Up Program Review, your BRAC Cleanup Team should identify instances where contaminant releases occurring under the compliance program are interfering with the restoration of a site or area. Situations of this nature should be resolved by your BRAC Cleanup Team and the assisting Project Team.

Non-point source discharges into surface waters are regulated under the CWA by regulations promulgated for storm water discharges (e.g., 55 FR 47990, 16 November 1990). Under these and supplemental regulations, the following discharges are subject to storm water requirements:

  • Discharges associated with industrial activity

  • Discharges received by municipal storm water sewer systems serving more than 100,000 people

  • Case-by-case designations

Under storm water requirements, dischargers must obtain a permit for the purpose of regulating the amount of pollutants discharges via storm water runoff, surface runoff, street wash waters, and drainage related to storm events or snow melt. Submittal of storm water permit applications are required for DoD Component installations where the following are present:

  • TSD facilities regulated under RCRA Subtitle C

  • Active, inactive, or closed landfill sites that receive or have received wastes from industrial facilities identified under 40 CFR 122.26(b) (14) (i-ix)

  • Vehicle maintenance shops with specific Standard Industrial Classification codes (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication) and equipment cleaning areas (such as truck washing areas)

  • Airports engaged in vehicle maintenance, equipment cleaning, deicing operations and other activities identified under 40 CFR 122.26(b) (14) (i-vii) or (ix-xi)

  • Parking lots associated with a vehicle maintenance shop

These and other CWA requirements are potentially triggered during remedy selection in the context of ARARs (see section 4.8.1 of this Guidebook).

A.3.4 Safe Drinking Water Act

The SDWA requires EPA to establish regulations to protect human health from contaminants in drinking water. Under Parts B and C of Title XIV of the SDWA, EPA has established the following programs to protect public drinking water supplies:

  • Drinking water standards

  • Underground Injection Control (UIC) Program

  • Sole-source Aquifer and Wellhead Protection Programs

The establishment of national drinking water standards is authorized under Title XIV, Part B of the SDWA. EPA has developed health-based (primary) and aesthetic quality (secondary) standards that generally apply to community water systems. Primary drinking water regulations include enforceable maximum contaminant levels (MCLs) for specific contaminants. Secondary drinking water regulations consist of secondary maximum contaminant levels (SMCLs) for specific contaminants or water characteristics. These are nonenforceable limits intended as guidelines for use by states in regulating water supplies.

Under Part C of Title XIV of the SDWA, EPA has developed the UIC program, which regulates underground injections into five classes of wells. Owners and operators of these wells must obtain permits or be authorized by rule under the UIC program before operation. Owners and operators must then comply with technical and procedural criteria in a manner that protects drinking water sources.

Under the Sole Source Aquifer program, EPA is permitted to designate aquifers that are sole or principal drinking water sources in order to increase their level of protection. In addition to this program, the SDWA directed states to develop and implement Wellhead Protection Programs. EPA is charged with reviewing these programs, ensuring that they comply with SDWA requirements, and making grants to states to assist in their implementation.

Your BRAC Cleanup Team should be aware of any SDWA requirements that may be potentially triggered during remedy selection in the context of ARARS.

A.3.5 Clean Air Act

The CAA regulates emissions into the air from stationary and mobile sources, inclusive of sources at federal facilities, such as DoD installations. Controls are implemented through combined federal, State, and local programs. Pursuant to CAA, EPA has promulgated National Ambient Air Quality Standards (NAAQS), National Emission Standards for Hazardous Air Pollutants (NESHAPs), and New Source Performance Standards (NSPS), any of which may apply to a mobile or stationary source, depending on the pollutant involved. These regulations are potential ARARs for response actions at contaminated sites, and are compliance standards for active sources.

NAAQS are found in 40 CFR Part 50 and have been promulgated for carbon monoxide, lead, nitrogen dioxide, particulate matter less than or equal to 10 microns in size, ozone, and sulfur oxides. These standards are to be achieved by the states through State Implementation Plans (SIPs). SIPs provide limitations, schedules, and timetables for compliance for stationary sources, as well as transportation control plans for mobile sources.

NESHAPs are covered in 40 CFR Part 61, and have been promulgated for arsenic, asbestos, benzene, beryllium, mercury, radionuclides, and vinyl chloride. Many more NESHAPs are being developed under the 1990 CAA Amendments.

NSPS are found in 40 CFR Part 60, and have been designated for fluorides, sulfuric acid mist, and total reduced sulfur.

Regulations under the CAA should be applied to sources under environmental restoration (e.g., ARARs) and compliance programs as appropriate.

A.3.6 State Laws and Other Statutes

CERCLA Section 120(a)(4) states that:

State laws concerning removal and remedial action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned or operated by a department, agency, or instrumentality of the United States when such facilities are not included in the National Priorities List.
 

CERCLA Section 121(d)(2)(A) requires States to identify ARARs in a timely manner.

Your BRAC Cleanup Team should identify State laws that may be potential ARARs for remedial actions during the Bottom Up Program Review (see Program Review Item 25 in section 3 of this Guidebook), and should attempt to identify these as early as possible during the RI. As a first step in identifying State ARARs, your BRAC Cleanup Team should consult ARARs listed in CERCLA RODs signed at other facilities/sites in your State. Additionally, selected members of the assisting Project Team should familiarize themselves with chapter 7 of CERCLA Compliance with Other Laws Manual: Part II. Clean Air Act and Other Environmental Statutes and State Requirements, Office of Solid Waste and Emergency Response (OSWER) Directive 9234.1-02.

A.3.6.1 Federal Facility Compliance Act

An additional law with jurisdiction at DoD installations is the Federal Facility Compliance Act (FFCA). Promulgated on 6 October 1992 as an amendment to RCRA, the FFCA directs the EPA to conduct annual inspections of federal facilities to ensure compliance with hazardous waste laws and regulations. Federal facilities inspected by EPA must reimburse the EPA for the costs of the inspection. The FFCA also contains a provision in section 104 (4) for State inspections. States with an authorized hazardous waste program may conduct an inspection of a federal facility in order to enforce facility compliance with State hazardous waste programs. Your BRAC Cleanup Team should identify any planned EPA or State inspections under the FFCA during its Program Review, or supplemental Program Reviews, and integrate them into your BCP strategy. If recent inspections under the FFCA have occurred, your BRAC Cleanup Team should also incorporate any relevant findings and recommendations into appropriate strategy, schedule, and action items chapters of your BCP.

Other applicable statutes that protect natural, cultural and historic resources are summarized in table A-6.

Deadlines in the Defense Reauthorization Act for fiscal years 1991-1993 for conducting environmental investigations at BRAC installations are also summarized in table A-6.


REGULATION/AUTHORITY

SUMMARY

Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. Sections 136 et seq.; 40 CFR 152-186

Establishes a registration program for pesticide and other substances. Governs disposal of pesticides and pesticide containers

National Defense Authorization Act for FYs 1992/1993 (NDAA 92/93), P.L. 102-190, Section 334(a)

Passed on 5 December 1991. Requires that Draft Final RI/FSs for Round I bases on the NPL be submitted to EPA by 4 December 1993 (24 months). Draft Final RI/FSs for Round II bases on the NPL must be submitted to EPA by 4 December 1994 (36 months). Allows for a six-month extension under certain conditions

American Indian Religious Freedom Act (AIRFA), 42 U.S.C. 1996

Protects and preserves religious freedoms of Native Americans, including access to religious sites

Archaeological and Historic Preservation Act (AHPA), 16 U.S.C. 469

Governs activities that may affect historic or archaeological resources

Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. 688

Governs activities and facilities that may threaten protected birds

Coastal Zone Management Act (CZMA), 16 U.S.C. Sections 1451-1464; 15 CFR 921-933

Encourages States along oceans and Great Lakes to adopt Coastal Zone Management Plans (CZMP) which require any applicant for a federal permit to certify that its project is consistent with the state CZMP

Endangered Species Act (ESA), 16 U.S.C. Sections 1531-1544; 50 CFR 17, 401-424, 450-453

Requires protection of threatened or endangered species by prohibiting activities and facilities that would have an adverse effect on them

Fish and Wildlife Coordination Act (FWCA), 16 U.S.C. Sections 661-666

Requires persons to consult with federal and State agencies when modifying, controlling, or impounding a surface water body over 4 hectares in size

Migratory Bird Conservation Act (MBTA), 16 U.S.C. Sections 703-712

Governs activities and facilities that may affect or threaten migratory bird habitats

National Historical Preservation Act (NHPA), 16 U.S.C. Section 36 CFR 60, 63, 800; Executive Order 11593

Establishes a program for the preservation of additional historic properties throughout the nation. Section 106 of the NHPA establishes a process to identify conflicts between historic preservation concerns (e.g. properties included or eligible for the National Register of Historic Places) and federal undertakings

Water Protection and Flood Prevention Act (WPFPA), 16 U.S.C. Sections 1001 et seq.; 33 U.S.C. Section 701-1; Executive Order 11988

Governs reservoir development and stream modification projects including specific wildlife habitat improvements

Wild and Scenic Rivers Act (WSRA), 16 U.S.C. 1271

Preserves and protects the free-flowing condition of selected rivers. Established a national Wild and Scenic Rivers System.

Table A-6

Other Laws That Protect Natural and Cultural Resources