_ (JOTTED STATES ENVIRONMENTAL PROTECTION AGENCY
§ WASHINGTON, D.C. 20460
JUN 30 1999'
OFF1CEOF
SOLID WASTE AND EMERGENCY
RESPONSE
OSWER Directive: 9355.0-71P
EPA540F-98-033
PB98-963305
MEMORANDUM
SUBJECT: Interim Policy on the Use of Permanent Relocations as Part of Superfimd
Remedial Actions
FROM: Timothy Fields, Jr.
Acting Assistant
TO: Superfimd National Policy Managers, Regions I-X
Regional Counsels, Regions I-X
Purpose
The purpose of mis interim policy is to provide direction to EPA Regional decision
makers on when to consider permanent relocation as part of a Superrund remedial action. EPA
anticipates developing a final policy at some point in the future, using feedback generated by the
Regions through the use of the interim policy and by stakeholders who nmy offer comment
This policy applies to National Priorities List (NPL) sites where remedial authority1 is
being used. It does not affect previous remedy selection decisions, nor does it limit potentially
responsible party (PRP) liability under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA). PRPs may agree independently with residents (or
lThis policy addresses sites being cleaned up under remedial authority. As stated in the Preamble to the
1985 National Oil and Hazardous Substances Contingency Plan (NCP), u[t]here are certain situations where EPA's
removal authority does not extend, e.g^ permanent relocation cannot be perfianned as part of a removal response."
SO Fed. Reg. 3762S (September 16,1985). There may, however, be cases where it is appropriate to provide
alternative housing or rental space for tenants (residential or businesses). Such provision of alternative rental space
does not constitute a permanent relocation. Regions should contact the Office of Emergency and Remedial Response
prior to initiating tenant relocation under removal authority.
Printed with Vagrtabte Ol Based Inks on 100% Recycled P*»r (20*Poakx>nsume»)
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business owners) to relocate them, as long as the relocaticp neither compromises, nor interferes
with EPA's actions at a site.
i
The major points of this directive are:
EPA's preference is to address the risks posed by the contamination by using
well-designed methods of cleanup which allow people to remain safely in their
homes and businesses;
EPA may consider a~permanent relocation alternative as part of the Feasibility
Study (FS) should certain site conditions, such as those described in this policy, be
encountered;
EPA should involve the community early hi the process and keep residents
informed of activities at the site; and
EPA cannot conduct a permanent relocation of tribal members without Tribal
government concurrence.
Background
Policy Development Activities
In January 1995, the National Environmental Justice Advisory Council's (NEJAC) Waste
and Facility Siting Subcommittee requested that EPA develop a policy to determine when
citizens should be relocated away from residential areas near or affected by Superfund sites.
NEJAC was responding to requests from communities who wanted to be relocated away from
Superfund sites because of: then- fear of the potential health effects; their concerns that they
could no longer sell their homes; and the effects on their overall quality of life. Responding to
these concerns, the Assistant Administrator of the Office of Solid Waste and Emergency
Response issued a memorandum entitled "Relocation of Residents Affected by Superfund Sites,"
on May 11,1995, to announce EPA's intent to develop a national relocation policy.
To understand fully the issues associated with relocation, EPA initiated several efforts.
First, EPA selected the Escambia Wood Treating Company site in Pensacola, Florida, as a
national relocation pilot On February 12,1997, a Record of Decision (ROD) was issued for (he
permanent relocation of 358 households. The Agency made a decision to relocate the residences
and clean up the properties to levels that are protective for industrial use. Although the pilot
project has not yet been completed, several key themes are already emerging. These include the
need for EPA to: keep communities informed throughout the process; promptly address
community concerns; and fector community concerns into EPA decisions. Upon completion of
the relocation pilot, EPA plans to conduct an evaluation to determine what lessons can be applied
at future sites and in the final relocation policy.
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Second, EPA reviewed a number of sites where cleanups in residential areas had been
conducted. To date, the overwhelming majority of Superfund sites located hi residential areas
are being cleaned up without the need to permanently relocate residents and businesses. For
example, at the Glen Ridge, Montolair/West Orange Radium sites hi New Jersey, the Bunker Hill
Mining site hi Idaho, and the Tar Creek site hi Oklahoma, EPA has successfully excavated
contaminated soils from approximately 5,000 residential properties down to levels of
contamination that no longer pose unacceptable risks. By addressing the risks at these three sites
through cleanups, people were able to remain hi their homes and entire communities were kept
intact.
Finally, EPA sponsored a series of stakeholder forums to solicit views and experiences on
the subject of relocation. Forums were held between May 1996 and October 1997 with
representatives from state governments, local governments, federal agencies, Native American
communities, environmental justice groups (which included citizens from communities near
Superfund sites), industries, and public health officials. Many of the same themes emerged
during these meetings as at the Escambia pilot site, including the need for EPA to: work closely
with members of the community to address then- issues; involve the community hi the decision-
making process; and communicate openly and honestly.
Stakeholders also offered their opinions as to what types of situations warrant the use of
permanent relocation at a site. Many believed that there should be clearly defined trigger
conditions under which permanent relocation automatically should be offered, regardless of
whether or not the residential areas could be cleaned up. One such suggested trigger condition
was the presence of adverse health effects for those who live on or immediately adjacent to a
Superfund site. There was a range of opinions on what type of health effects data should be
considered, and how exactly they should factor into a relocation decision. Some suggested using
the baseline risk assessment performed to assess the threats posed by the Superfund site, while
others believed any unexplained or anecdotal reports of health effects hi the area of the
Superfund site should be sufficient to trigger a relocation offer. Still, others asked EPA to
consider cumulative and synergistic effects of multiple contaminants from other industrial
sources.
In addition to health effects, stakeholders recommended that relocation be considered
whenever the site has a negative influence on the residents' quality of life. Stakeholders
provided anecdotal information about residents who curtailed all outside activities (e.g., allowing
children to play outside, socializing outdoors, or opening windows) because of their fear of living
near a Superfund site. Several also expressed concern mat EPA might impose restrictions on
normal residential activities (e.g., recommending that children-Hot play hi their yards) instead of
cleaning up residential areas. Others questioned EPA's ability to implement a remedy safely,
adding that relocation should be considered whenever cleanups result hi dust emissions or heavy
equipment hi residential areas. Although stakeholders acknowledged that temporary relocations
could address these safety concerns, some suggested that EPA offer permanent relocation when
temporary relocation exceeds an acceptable duration.
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Stakeholders also recommended that EPA make relocation experts available as early as
possible whenever relocation is being contemplated as a potential remedial alternative so the
community can be better informed of their options before a decision is made. There was also a
general view that if relocation is necessary, EPA should seek ways to enhance stability and
restore the remaining community's viability by working with other governmental and nonprofit
agencies.
* - ;.
A comprehensive description of the forums can be found hi "Proceedings: Superfund
Relocation Roundtable Meeting" (December 1996, OSWER 9378.0-03, EPA 540-K-96MHO,
PB96-963254), and "Meeting Summaries from the EPA/ICMA Relocation Stakeholder Forums"
(May, 1998, OSWER 9378.0-12, EPA/540-R-98-002, PB98-963203). EPA has also prepared a
response to comments made during the forums, which can be found hi "Relocation Stakeholder
Forums Responsiveness Summary," (June 1999, OSWER 9375.1-14, EPA 540-F-98-058, PB99-
963206).
Remedy Selection in the Superfimd Prop-am
CERCLA section 101(24) grants explicit authority to conduct permanent relocations by
defining remedial.action to include, "...the costs of permanent relocation of residents and
businesses and community facilities where the President determines that, alone or in combination
with other measures, such relocation is more cost-effective than and environmentally preferable
to the transportation, storage, treatment, destruction, or secure disposition offsite of hazardous
substances, or may otherwise be necessary to protect the public health..." Additionally, the
National Oil and Hazardous Substances Contingency Plan (NCP), which constitutes CERCLA's
implementing regulations, states that, "[t]emporary or permanent relocation of residents,
businesses, and community facilities may be provided where it is determined necessary to protect
human health and the environment" (40 CFR section 300, App. D(g)).2
The NCP (40 CFR section 300.430) establishes a remedy selection process to ensure that
remedies meet the principal requirements of CERCLA section 121. Remedies must:
1. Protect human health and the environment;
2. Comply with applicable or relevant and appropriate requirements (ARARs) unless
a waiver is justified;
3. Be cost-effective;
4. Utilize permanent solutions and alternative treatment technologies or resource
recovery technologies to the maximum extent practicable; and
5. Satisfy the preference for treatment as a principal element or justify why the
preference was not met
Temporary relocations are used to address health or safety concerns that EPA may have during removal or
remedial actions. This policy does not provide guidance on determining when temporary relocation should be
considered.
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In accordance with the NCP, (40 CFR section 300j430(a)), 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.'* The NCP
defines a process where nine criteria (40 CFR section 300.430(eX9Xiii)(AHI)) are to be used to
analyze remedial alternatives to ensure that selected remedies meet the program's goals.
Because permanent relocation is considered a remedial action, it is selected for use at a
Superfund site only when it has been evaluated through this process and determined to be the
best overall remedy for the site.
The first step of the remedy selection process is to conduct a remedial investigation (RI)
to characterize the nature and extent of site: contamination. As part of the Rl, a baseline risk
assessment is performed to estimate the current and potential risks to human health and the
environment posed by conditions at the site.3 If the baseline risk assessment indicates that there
is no unacceptable risk to human health or the environment, then remedial action would generally
not be warranted. If there are current or potential risks that need to be addressed, a feasibility
study (FS) is completed. The FS encompasses an evaluation of a range of potential remedial
alternatives, which may include permanent relocation, as appropriate, along with an array of
treatment and, containment options.
A detailed evaluation of the alternatives is performed using the nine evaluation criteria.
These criteria are protection of human health and the environment, compliance with ARARs,
long-term effectiveness and permanence, reduction of toxicity, mobility, or volume through
treatment, short-term effectiveness, implementability, cost, state agency acceptance, and
community acceptance.
The evaluation comprises two steps: an individual analysis of each alternative with
respect to each of the criteria; and a comparison of the alternatives to determine then: relative
performance and identify the major tradeoffs among them. EPA weighs these tradeoffs in terms
of the nine criteria and identifies the option which it believes strikes the best balance and fulfills
the statutory requirements. This preferred option is presented to the public for comment hi a
proposed plan, which preliminarily summarizes why EPA considers this option to be most
favorable. Following receipt and evaluation of public comments on the proposed plan, EPA
makes a final decision and documents the selected remedy in a ROD.
Additional information concerning the Superfund remedy selection process can be found
in "A Guide to Selecting Superfund Remedial Actions" (April 1990, OSWER Directive 9355.0-
72FS).
'Key information should be collected to support the reasonably anticipated future land use assumptions
used in the baseline risk assessment EPA must carefully consider whether potential land use changes feat may be
offered by local authorities are reasonable or are too speculative to ensure protecthreness for future use. EPA does
not anticipate many situations where the cuirent use is residential and the reasonably anticipated firture land use will
be different See "Land Use in the CERCLA Remedy Selection Process," (May 25,1995, OSWER Directive
9355.7-04) for additional information on how to determine land use assumptions.
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Implementation
Having proven our ability to successfully restore contaminated property at many
Superfund sites, generally, EPA's preference is to address the risks posed by the contamination
by using well-designed methods of cleanup which allow people to remain safely in their homes
and businesses. This is consistent with the mandates of CERCLA identified above, and the
implementing requirements of the NCP which emphasize selecting remedies that protect human
health and the environment, maintain protection over time, and minimise untreated waste.
Because of CERCLA's preference for cleanup, it will generally not be necessary to
routinely consider permanent relocation as a potential remedy component Whenever permanent
relocation is under consideration, EPA must ensure that the vacated properties do not pose a
current or future risk to human health and the environment for those that may come in contact
with the site. As a result, some type of cleanup or other response action generally will be needed
to'address the vacated properties.
" "
The following list, although not inclusive, provides examples of the types of situations
where permanent relocation may be considered. Generally, the primary reasons for conducting a
permanent relocation would be to address an immediate risk to human health (where an
engineering solution is not readily available) or where the structures (e.g., homes or businesses)
are an impediment to implementing a protective cleanup. The examples are discussed in terms of
how EPA could conduct an alternatives analysis applying several of the NCP nine criteria,
leading to the consideration of permanent relocation as an appropriate option.
Permanent relocation may be considered in situations where EPA has determined that
structures must be destroyed because they physically block or otherwise interfere with a
cleanup and methods for lifting or moving the structures safely, or conducting cleanup
around the structures are not imptementable from an engineering persperfve. The
methods may be technically infeasible because the,
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controls see "Land Use in the CERCLA Remedy Selection Process."
"r' ' *
Permanent relocation may be considered when an alternative under evaluation includes a
temporary relocation expected to last longer than one year. A lengthy temporary
relocation may not be acceptable to the community. Further, when viewed in light of
the balancing of tradeoffs between alternatives, the temporary relocation remedy may not
be practicable, nor meet the statutory requirement >o be cost-effective. Additionally, a
shortage of available long-term rentals within the immediate area, may make any
potential temporary relocation,ejjremely difficult to implement
Whenever permanent relocation is to be considered, it is imperative that EPA work with
the affected stakeholders (e.g., potentially affected residents and businesses, the state, the tribe,
the local government, and other members of the community) to identify the major issues
associated with the relocation, including acceptability of relocation to the community, so the
issues can be factored into the nine criteria evaluation. For example, an "implementability"
concern that may arise during this evaluation is the lack of comparable housing. Additionally,
the willingness of the state to provide a cost-share or accept title to the acquired properties may
affect "state acceptance4."
It is possible that the need for permanent relocation may not become apparent until a
remedy reaches the remedial design or remedial action phase. In those cases, it may be
appropriate to prepare either an Explanation of Significant Differences (BSD) or a ROD
Amendment, depending on the scope of the change this would represent (See "Guide to
Addressing Pre-ROD and Post-ROD Changes," April 1991, OSWER Publication
9355.3-02FS-4).
A permanent relocation funded through CERCLA should be implemented in accordance
with the Uniform Relocation and Real Property Acquisition Policies Act (URA), 42 U.S.C.
.Action 4600-4655, and applicable regulations, 49 C.F.R. section 24, et seq. The purpose of the
URA is to ensure that persons displaced as a direct result of a project are treated fairly,
consistently, and equitably. EPA uses the services of the U.S. Army Corps of Engineers and U.S.
Bureau of Reclamation to assist in conducting relocations because of their expertise in applying
the URA. All relocations funded by PRPs, as part of the remedy selected by EPA, should follow
procedures comparable to the URA. EPA may enter into a consensual agreement with PRPs to
conduct a relocation, or EPA may issue a unilateral administrative order to do so.
In cases where a State or local government entity is a PRP conducting me relocation and
exercises its sovereign authority to condemn the affected property, EPA should be consulted
regarding the application of the URA on a site-specific basis. For example, EPA should ensure
4CERCLA §1040) authorizes EPA to acquire property needed to conduct a remedial action only if the state
in which the property is located assures EPA that it will accept transfer of the property following completion of the
remedial action.
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that the state assuming title to the property does not interfere with access to the property for
implementation of the remedy; the affected community receives fair and equitable treatment for
the condemned property; and there is effective outreach to the affected community and
stakeholders.
Community Involvement
:'- Jv'
As soon as EPA becomes involved at a site, discussions with the community should begin
to inform residents and businesses ofactivities at the site and to allow the opportunity for citizens
to become part of the process. TheseluSivities may include, but are not limited to: distributing
fact sheets to inform the community of site activities; conducting availability sessions for
residents to ask questions; posting news releases about site activities; and establishing hotlines to
answer citizens' questions.
When a permanent relocation is considered, residents and businesses should understand
the multitude of issues associated with the relocation process, including the financial benefits.
Communities may want to use a relocation expert or advisor to provide independent assistance to
the residents and businesses before EPA makes a decision to relocate. A relocation expert may
be accessed through EPA's Technical Assistance Grant (TAG) program.
The TAG program awards grants of up to $50,000 to eligible communities so they can
hire independent technical advisors to interpret information about the site. A relocation expert,
funded under a TAG, would need to meet requirements regarding activities and qualifications
that apply to TAGs (see 40 CFR Part 35, Subpart M). Generally, a qualified relocation expert
should possess the following credentials: experience hi working on family and/or business
relocations, including knowledge of the URA, and private relocation programs; experience
working with real estate brokers and lenders; and demonstrated knowledge of appraisals, title
searches, real estate title insurance, and relevant state and local real estate tax laws. In Indian
c untry, the relocation expert should also understand relevant fede. ol Indian law and tribal law.
The relocation expert should be impartial and have the ability to explain the costs, benefits,
pitfalls, and other lifestyle effects of relocation to residents. If a relocation decision is made, then
EPA will provide relocation counseling services as required under the URA. On a voluntary
basis, PRPs may fund a relocation expert for a community.
In addition to addressing the community's information needs, there are other procedural
ways the community can be involved in the cleanup process. In response to the President's
Executive Older on Environmental Justice 12898, Superfund established the Community
Advisory Group (CAG) program. CAGs, comprising representatives with diverse community
interests, provide a public forum for community members to present and discuss their needs and
concerns about a site. At sites where relocation is being considered, EPA recommends mat a
CAG or similar-type group be formed to fully engage all the interested parties in a meaningful
dialogue about the site cleanup and how relocation may or may not fit into a community's long-
term vision and plans. For additional information, see "Guidance for Community Advisory
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Groups at Superfund Sites," (December 1995, OSWER Directive 9230.0-28, PB94-963293, EPA
540-K-96-001). ;
% ..'' *;
The prospect of permanent relocation as a remedial action alternative may raise a
number of practical problems that should be carefully considered by citizens residing in an
affected community. In some communities, a permanent relocation could alter the fabric of a
locality by affecting the local tax base and the services that the communities support, including
small businesses, schools, churches, and hospitals. Furthermore, permanent relocation can result
in the break up of neighborhoods dissolving valuable social cohesion. Community involvement
activities at a particular site should be tailored to meet the various needs and concerns of
individual citizens within the affected community. EPA should also explore opportunities to
partner with other federal agencies (e.g., Department of Housing and Urban Development,
Agency for Toxic Substances and Disease Registry, or Department of Transportation), the state,
local agencies, non-governmental organizations, and non-profit organizations (e.g., Red Cross) to
help identify other potential assistance that may be available to the relocated residents or to those
in the community that remain behind.
Additional Considerations for Native Americans. Including Alaska Native Villages
For all decisions affecting federally recognized tribes, EPA is guided both by statute and
policies. As provided hi CERCLA section 126(b), if the Agency finds that "...the proper
remedial action is the permanent relocation of tribal members away from a contaminated site
because it is cost effective and necessary to protect their health and welfare, such finding must be
concurred on by the affected tribal government before relocation shall occur..." If there is
nonconcurrence, EPA should work with the tribal government and community on a site-specific
basis to address other cleanup options at these sites to protect tribal members' health and welfare.
Additionally, CERCLA section 126(b) states that if the tribal government concurs hi the
relocation decision, then EPA, in cooperation with the Department of the Interior, "...shall also
assure that all benefits of the relocation program are provided to the affected tribe and that
alternative land of equivalent value is available and satisfactory to the tribe. Any lands acquired
for relocation of tribal members shall be held hi trust by the United States for the benefit of the
tribe..." Further, Executive Order 13084, "Consultation and Coordination with Indian Tribal
Governments," dated May 14,1998, and the "Policy for the Administration of Environmental
Programs on Indian Reservations," dated November 8,1984, describes how EPA should work
with federally-recognized Indian tribes and Alaska Native Villages on a government-to-
government basis.
As discussed previously, EPA conducted a stakeholder forum with Native American and
Alaska Native participants. During that meeting, they generally expressed their views that
permanent relocations should not be conducted on tribal lands. The participants asked mat tribal
lifestyles be considered when evaluating any potential relocation alternative. These
considerations should include subsistence lifestyles (e.g., hunting/fishing territories, dietary
needs, medicinal plants), treaty-protected resources, and religious beliefs tied closely with the
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land (e.g., sacred religious sites). Due to the close relationship between Native Americans and
specific lands, relocation of tribal communities can have^ profound impact on community
well-being and integrity. Given these unique considerations, EPA expects mat tribal government
concurrence on the use of permanent relocation, as required by CERCLA section 126(b), may be
quite limited.
Conclusion
Permanent relocation is a coujglicated process that can cause personal and social
disruption and stress. It is EPA's preferred approach to address the risks posed by the
contamination by using well-designed methods of cleanup so people can remain safely in their
homes and businesses. Therefore, permanent relocation as part of a Superfund response action
generally should not be necessary to protect human health and the environment However, as
indicated above, there are limited cases where permanent relocation may be an important part of
a remedial action. Regardless of the remedy selected, EPA should continue to: involve the
community as early as possible in the Superfund process; partner with the local, state, and tribal
governments; and make every effort to implement the action in an expeditious, thoughtful, and
fair manner.
If mere are any questions regarding this policy, please contact Jo Ann Griffith of the
Office of Emergency and Remedial Response at (703) 603-8774. Additionally, for enforcement
implications related to this policy, please contact Clarence Featherson of the Office of
Enforcement and Compliance Assurance at (202) 564-4234.
cc: GaryGuzy, OGC
Lisa Friedman, OGC
Steven Herman, OECA
Barry Breen, OECA-OSRE
Barry E. Hill, OECA-OEJ
Steve Luftig, OSWER-OERR
Kathy Gorospe, OW - American Indian Environmental Office
Dr. Henry Falk, ATSDR
Harold Lucas, Department of Housing and Urban Development
Pat Rivers, U.S. Army Corps of Engineers
Robert Cribben, U.S. Army Corps of Engineers
Stan Seigel, U.S. Bureau of Reclamation
Marshall Schy, Department of Transportation
NEJAC, Waste and Facility Siting Committee
Bob Cianciarulo, Superfund Lead Region Coordinator, Region 1
Community Involvement Coordinators, Regions I-X
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