SUPERFUND
ADMINISTRATIVE
REFORMS
ANNUAL REPORT
FISCAL YEAR 1996
r/EPA
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ANNOTATED TABLE OF CONTENTS
SUPERFUND ADMINISTRATIVE REFORMS ANNUAL REPORT, FISCAL YEAR 1996
MAJOR ACCOMPLISHMENTS v
SUMMARY OF STATUS AND NEXT STEPS, ROUND 3 A-l
SUMMARY OF STATUS AND NEXT STEPS, ROUND 2 B-l
SUPERFUND REFORMS ROUND THREE
I. CLEANUPS 1
1. ESTABLISH COST-EFFECTIVENESS THRESHOLDS AND NEW RULES-OF-THUMB 1
la. Establish National Remedy Review Board 1
EPA created the National Remedy Review Board, composed of senior Agency experts, to review
proposed high cost remedies at specific sites to ensure that costs are not disproportionate to cleanup
benefits.
lb. Establish New Remedy Selection Management Flags ("Rules-of-Thumb") 2
The goal of the rules-of-thumb initiative is to develop remedy selection rules that will promote cost-
effectiveness and flag potentially "controversial" cleanup decisions for senior management review.
2. UPDATE REMEDY DECISIONS AT SELECT SITES 3
EPA encourages the Regions to revisit remedy decisions at certain sites where significant new scientific
information, technological advancements, or other considerations will achieve the current level of
protectiveness of human health and the environment in a more cost-effective manner.
3. CLARIFY THE ROLE OF COST AND MAINTAIN CONSISTENCY THROUGHOUT THE REMEDY
DEVELOPMENT PROCESS 5
3 a. Clarify the Role of Cost in the Remedy Selection Process 5
This reform clarifies the role of cost in developing cleanup options and selecting remedies, and
promotes the use of policies and guidances in order to assure cost-effectiveness.
3b. Directive on National Consistency in Remedy Selection 6
This directive emphasizes the critical importance of maintaining appropriate national consistency
in the Superfund remedy selection process and requests that program managers make full use of
existing tools and consultation opportunities to promote such consistency.
4. CLARIFY INFORMATION REGARDING REMEDY SELECTION DECISIONS 7
This initiative requires EPA to develop summary sheets that clearly demonstrate the basis for remedy selection
at each site. The summary sheet will present the relationship between site risks and response actions, including
costs and benefits of cleanup alternatives.
5. INSTITUTE NEW ROLE FOR STAKEHOLDERS IN RISK ASSESSMENTS 8
5 a. Community Participation in Designing Risk Assessments 8
EPA solicits early stakeholder input to identify and make consistent use of current information
about the site and site contaminants.
5b. PRP Performance of Risk Assessments 9
This initiative reaffirms EPA's commitment to allow potentially responsible parties (PRPs) at a site
to perform risk assessments under the proper circumstances.
6. ENSURE REASONABLE AND CONSISTENT RISK ASSESSMENTS 9
6a. Establish National Criteria on Superfund Risk Assessments 9
EPA will issue national criteria to the Regions for review, approval, and reporting of Superfund risk
assessments.
6b. Standardize Risk Assessments 10
This initiative standardizes those components of the risk assessment process that vary slightly
from site to site.
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6c. Utilize Expert Work Group on Lead 11
This initiative utilizes an expert workgroup to standardize risk assessment approaches for
lead-contaminated Superfund sites.
7. ESTABLISH LEAD REGULATOR FOR FEDERAL FACILITIES 12
EPA is developing guidance to establish a lead regulator at each site undergoing cleanup activities under
competing Federal and State authorities to eliminate overlap and duplication of efforts.
8. CONSIDER RESPONSE ACTIONS PRIOR TO NPL LISTING 14
This initiative ensures that response actions that have been taken up to the time of listing are considered
before listing sites on the National Priorities List (NPL).
9. DELETE CLEAN PARCELS FROMTHE NPL 15
EPA will delete portions of sites from the NPL that have been cleaned up and are available for productive use.
10. CONDUCT NATIONAL RISK-BASED PRIORITY SETTING 16
lOa. Promote Risk-Based Priority Setting at Federal Facility Sites 16
EPA will address the role of risk and other factors in setting priorities at Federal facility sites.
10b. Promote Risk-Based Priority for NPL Sites 16
EPA has established a National Risk-Based Priority Panel to evaluate the priority order of NPL sites.
II. ENFORCEMENT 17
11. ORPHAN SHARE COMPENSATION 17
This initiative seeks to compensate parties for a limited portion of the costs attributable to insolvent parties
(orphan share) at sites where parties agree to perform the cleanup, subject to the adequacy of funding for the
cleanup program.
12. SITE SPECIFIC SPECIAL ACCOUNTS 19
EPA will direct settlement funds designated for future site costs to be placed in site-specific accounts and
ensure that interest is credited to those accounts.
13. EQUITABLE ISSUANCE OF UNILATERAL ADMINISTRATIVE ORDERS (UAOs) 20
EPA is committed to ensuring that UAOs are issued to all appropriate parties where there is a sufficient
basis to include them.
14. REVISED DE MICROMIS GUIDANCE 21
This reform is intended to improve EPA's ability to resolve very small volume waste contributors'
(i.e., de micromis) liability concerns quickly and fairly.
15. ADOPTING PRIVATE PARTY ALLOCATIONS 23
In order to reduce transaction costs, EPA has committed to adopt private party allocations (including those
that identify an orphan share) as the basis for settlement, where such allocations are approved by EPA.
16. REDUCED OVERSIGHT FOR CAPABLE AND COOPERATIVE PRPs 24
EPA will strive to acknowledge PRPs that consistently perform high quality work by significantly reducing
or tiering oversight, thereby reducing transaction costs.
III. PUBLIC INVOLVEMENT 25
17. PILOT REMEDY SELECTION BY SELECTED STATES AND TRIBES 25
This initiative implements a process whereby qualified States and Tribes would select remedies at certain
Superfund sites, consistent with applicable law and regulations governing cleanups.
18. PILOT COMMUNITY-BASED REMEDY SELECTION PROCESS 26
EPA will explore the use of more "consensus based" approaches that involve community stakeholders in the
Superfund remedy selection process.
19. ESTABLISH SUPERFUND OMBUDSMAN IN EVERY REGION 27
This initiative established an Ombudsman in each Region to serve as a point of contact for the public and
help resolve stakeholder concerns.
20. IMPROVE COMMUNICATION WITH SUPERFUND STAKEHOLDERS 28
This initiative utilizes electronic tools (such as the Internet, multimedia computers, and other electronic
means), to both increase communication among all Superfund stakeholders and improve access to
Superfund information.
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SUPERFUND REFORMS ROUND TWO
I. ENFORCEMENT 31
1. PRP SEARCHPILOTS 31
EPA is piloting several procedures to improve the quality and timelines of PRP searches, make information
obtained more accessible, and conduct PRP searches to more fully identify a larger universe of PRPs earlier
in the process.
2. EXPEDITED SETTLEMENTS 33
EPA is identifying and offering eligible parties expedited settlements (ability-to-pay settlements and early
de minimis settlements) at pilot sites.
3. ALLOCATION PROCESS 35
EPA is piloting a process to allocate responsibility for response costs among all parties at selected pilot
sites.
II. ECONOMIC REDEVELOPMENT 38
4(a & b). BROWNFIELDS INITIATIVE 38
This initiative is a comprehensive approach to empowering States, communities and other stakeholders
interested in economic redevelopment to work together in a timely manner to prevent, assess, clean up,
and reuse brownfields (abandoned, idled, or under-used industrial and commercial areas).
4a. Brownfields Pilot Projects 39
4b. Community Outreach 40
4c. REFINING CERCLIS 40
This initiative reduces the stigma associated with sites listed in CERCLIS by removing those sites with no
further interest under the Federal Superfund Program from the CERCLIS inventory.
4d. CLARIFYING NPL SITES 41
EPA has issued guidance that authorizes the Regions to clarify areas on or adjacent to NPL sites that are
determined to be uncontaminated.
4e. REMOVING LIABILITY BARRIERS 43
EPA is issuing guidance which identifies options to remove liability-based barriers to property transfers
at certain sites and describes the circumstances under which the Agency will issue comfort/status letters.
III. COMMUNITY INVOLVEMENT AND OUTREACH 45
5a. COMMUNITY ADVISORY GROUPS (CAGs) 45
This initiative encourages Regions to establish CAGs which provide a public forum for community members
to present and discuss their needs and concerns about the decision-making process at sites affecting them.
5b. TECHNICAL ASSISTANCE GRANTS (TAGs) 46
EPA is encouraging the Regions to consider means to increase citizen involvement such as advance
funding of TAGs and the authorization of training for TAG recipients.
6. COMMUNITY INVOLVEMENT IN THE ENFORCEMENT PROCESS 47
EPA will identify and pilot enhanced, innovative approaches to community involvement in technical
settlement issues.
IV. ENVIRONMENTAL JUSTICE 48
7a. TRAINING AND HEALTH SERVICE ASSISTANCE TO COMMUNITIES 48
EPA, in coordination with the U.S. Public Health Service, established the Medical Assistance Plan (MAP)
that provides health services assistance to citizens in proximity to Superfund sites.
7b. JOB TRAINING AND DEVELOPMENT 49
EPA has developed interagency pilots to train and employ community residents living near Superfund
sites through classroom instruction and hands-on work experience.
V. CONSISTENT PROGRAM IMPLEMENTATION 51
8. GUIDANCE FOR REMEDY SELECTION 51
EPA is issuing guidance for soil screening levels, land-use, and several presumptive remedies to improve
consistency and to take advantage of streamlining opportunities in site characterization and remedy selection.
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9. RISK SHARING 53
9a. Implementing Innovative Technology 53
To share risks associated with implementing innovative technologies, EPA will agree to underwrite
the use of certain promising innovative approaches for a limited number of approved projects.
9b. Identifying Obstacles to Using Innovative Technology 54
EPA will develop programs to share risks associated with implementing innovative technologies by
exploring and identifying contractor's concerns with the selection and use of innovative technologies.
VI. STATE AND TRIBAL EMPOWERMENT 54
10. VOLUNTARY CLEANUP PROGRAM 54
EPA has initiated a joint EPA/State/Tribal effort to promote voluntary cleanup programs which are
designed to speed the cleanup of non-NPL sites.
11. INTEGRATED FEDERAL/STATE/TRIBAL SITE MANAGEMENT PROGRAM 55
EPA and States are developing a pilot program under which States, Territories, Commonwealths, and Tribes
would oversee and compel PRP actions at selected NPL-caliber sites.
12. STATE/TRIBAL SUPERFUND BLOCK FUNDING 56
This initiative explores the interest of States and Tribes in a project to examine the feasibility of using a
single cooperative agreement to finance Superfund activities within State or Tribal boundaries.
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MAJOR ACCOMPLISHMENTS
Fundamentally Different: How EPA Has Changed
Implementation of the Superfund Program
INTRODUCTION
For several years, EPA has been reforming the Superfund program to make it work faster,
fairer, and more efficiently. While EPA has been working with Congress to make
legislative changes, it also has fundamentally changed the program by implementing a
series of far-reaching reforms.
These changes have improved the functioning of a program that addresses thousands of
abandoned sites throughout the country. Chemical and radioactive wastes at such sites
threaten nearly 70 million Americans - including more than 10 million children - who live
within four miles of a Superfund site.
The highlights of EPA's comprehensive effort to restructure Superfund are summarized
below. A more detailed description of the status of EPA's reform effort is provided in the
attached Annual Report.
THE SUPERFUND PROGRAM TODAY
The collection of initiatives known as "Superfund reforms" has produced basic, permanent
changes in the Superfund program, ranging from national programmatic changes to
changes impacting individual sites at every stage of the cleanup and enforcement
processes. Reforming Superfund has been a continuous process - EPA piloted changes,
learned from them, and, where they were successful, made them part of the program.
EPA developed these reforms after consideration of the differing perspectives of the
various stakeholders in the Superfund process. By listening and responding to these
perspectives, changes have been made to the Superfund process that speed it up, reduce
costs, and make it fairer. These changes affect the entire process - stretching from the
very beginning (when a site is first assessed), to the very end (when construction is
completed and any enforcement is concluded).
As a result of Superfund reform, EPA's internal decision-making processes make more
sense. The Agency has taken a number of steps to ensure that Federal Superfund
resources and protections are focused in the right places. The Agency is prioritizing
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cleanups so that the sites posing the worst environmental and health problems are
addressed first. EPA is deleting cleaned up portions of sites from the National Priorities
List (NPL) instead of waiting for the whole site to be cleaned up so that these sites will
not suffer from any limitations imposed by identification as a Superfund site. EPA deleted
over 27,000 sites from its inventory of all potential hazardous waste sites in instances
where no further response activity is planned for the site. EPA also will encourage
comparable State voluntary programs to handle sites that do not rise to the level of
Federal attention.
When a site does merit a Federal response, the process for selecting the response is faster
and less costly. When determining the risk posed by the site, EPA incorporates the most
recent information and reasonable assumptions in its risk-based and remedial decisions.
Assumptions regarding current and future land use are developed in conjunction with the
affected community. After determining the risk posed by the site, EPA must consider
various remedies to address the risk. In conjunction with States and communities, EPA is
coordinating the selection of better, more cost-effective remedies. Where EPA has
accumulated a body of experience in addressing a particular type of site, it has identified
standardized remedies known as "presumptive remedies" to eliminate the need for costly
studies and processes that are likely to yield the same choices.
In selecting the right remedy for a particular site, EPA clarified the role that cost plays in
affecting that decision. To ensure that costs are given an appropriate role in remedy
selection, EPA established a panel of national experts to review high cost remedies.
Where a remedy selected in the past may merit reconsideration based on new
technological developments, EPA is revising these remedies to ensure that the most cost-
effective remedies are considered. The Agency's track record on future cost reductions at
every step of the way is remarkable - money is being saved by reviewing remedy selection,
updating remedy decisions, applying presumptive remedies, and implementing remedies
selected with community participation. Just from the initial implementation of these most
recent reforms alone, over $400 million in reduced future cleanup costs will be achieved.
The enforcement process has also been transformed into a fairer process that results in
reduced transaction costs. EPA continues to emphasize "Enforcement First" - using its
enforcement authority to assure that viable private parties that created hazardous wastes
are held responsible for cleaning them up, so that the Superfund is reserved for truly
"orphaned" sites. More than 70% of long-term cleanup actions are now financed by
responsible parties. EPA's implementation of this approach, however, has included efforts
to enhance equitable treatment for all parties. EPA does not pursue parties whose
contribution of waste to the site is extremely small, since the transaction costs these
parties would incur in defending themselves would easily exceed whatever minimal
contribution they may be expected to make. Parties with slightly larger contributions
(known as de minimis parties) are routinely offered cashout settlements early in the
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process to limit their transaction costs and give them the assurance of being protected
from any further involvement at the site. Over 14,000 of these parties have taken
advantage of these settlement opportunities to date.
The remaining parties, who bear a larger burden of responsibility at these sites, have also
benefited from the enforcement reforms. Where there are parties that are no longer in
business or without assets, EPA provides compensation for a portion of those parties'
share at sites where the remaining parties agree to perform the work. This past year, EPA
offered to compromise over $57 million at various sites to increase fairness for those
parties agreeing to perform cleanups. To reduce the transaction costs that are often
incurred where parties cannot agree on what share each party should bear, EPA is testing
an allocation process where a neutral party determines each party's share of responsibility
and EPA offers settlements to parties based on that allocation. Although these test cases
have not been concluded, the Agency has already learned valuable lessons that are already
impacting its enforcement process. In addition, EPA has established and utilized interest-
bearing "special accounts" to ensure that settlement funds are dedicated for use in
achieving cleanup at a specific site. Lastly, where potentially responsible parties (PRPs)
have demonstrated their capability and cooperativeness in performing site cleanup, EPA
will significantly reduce oversight, and thereby reduce the costs of cleanups, for
cooperative responsible parties.
Superfund reforms also have focused the Agency's attention on promoting redevelopment
of abandoned and contaminated properties across the country. The Agency has
aggressively pursued policies to promote sensible redevelopment of "Brownfields" - those
abandoned, idled, or under-used industrial and commercial areas across the country where
expansion or redevelopment is complicated by real or perceived environmental
contamination. EPA is providing grant money to 76 communities to develop strategies to
revitalize local brownfield sites. EPA is stimulating the purchase of property for
redevelopment by expanding the opportunity for more agreements promising not to sue
those purchasers for any contamination present at the time of purchase. For many parties
who may own property that is part of a Superfund site (but they have very little, if any,
link to the contamination) EPA stated its intention not to pursue these types of parties.
For example, EPA issued policies describing the circumstances under which it will not
take enforcement actions for cleanup work or costs against various parties, such as
residential homeowners. EPA has had great success restoring contaminated residential
properties, working with homeowners to remove contaminants frequently found in
residential areas. Additionally, in a recent study of how sites were being re-used, EPA
found that of the first 191 construction completion sites, 80 were already in economic
reuse in 1995 and 44 additional sites are in some non-economic reuse (e.g., floodplains,
wetlands, green space, permanent waste management). These are just a few of the
highlights of EPA's extensive Brownfields initiative.
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The rest of this document elaborates on this "thumbnail" portrait of how reforms have
changed the Superfund program. Only highlights are furnished, since more extensive
details are set forth in the Annual Report itself.
MORE EFFICIENT CLEANUPS
Setting Priorities for Cleanups
To ensure that available funds are directed to the highest priority response projects on a
national basis, EPA established a National Risk-Based Priority Panel (Panel) in August
1995. Prior to this reform, individual Regions established the relative priority of their
cleanup projects which were then funded on a first-come, first-served basis. This reform
established a national priority system to fund cleanups based on the principle of "worst
problems first." The Panel evaluates proposed cleanup actions, looking at the following
factors: risks to humans and the ecology; stability and characteristics of contaminants; and
economic, social and program management considerations. With the exception of
emergencies and the most critical removal actions, cleanup projects are generally funded in
order of priority based on the recommendations of the Panel. By early 1997, the panel
had ranked projects approaching $1 billion in cleanup costs.
Getting PRPs "Into the Act"
High quality risk assessments can often be performed faster and cheaper by PRPs under
EPA's supervision, saving taxpayer money and accelerating the pace of cleanup. In
January 1996, EPA issued a directive encouraging the performance of Superfund site risk
assessments by PRPs in appropriate cases. Eight Regions have now identified Superfund
sites for PRP-led risk assessments.
FASTER CLEANUPS
In FY92, EPA established a goal of achieving 395 toxic waste cleanups (or construction
completions) atNPL sites by the end of FY96. On October 15, 1996, the Administrator
announced the completion of 410 Superfund toxic waste site cleanups. EPA has set a
record pace for cleaning up Superfund sites - cleaning up more toxic waste sites in the
past three-and-a-half years than were completed in the previous 12 years of the Superfund
program. At the Lord-Shope Landfill near Erie, Pennsylvania (the 400th site to be cleaned
up) parties used innovative technology to remove contaminants. Tons of industrial wastes
had been dumped over 20 years (including debris, rubber scrap, organic and inorganic
chemicals, solvents, cooling acids, and caustic agents) that resulted in ground water
contamination. Today, the worries of the community are at an end. No longer do they
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need to be concerned about the safety of drinking water, the impact on farmland near the
site, the effect on property values of their homes and businesses, and the possibility of
children wandering onto the site and playing among the drums of toxic chemicals.
EPA (with the support of the Corps of Engineers and the Bureau of Reclamation and their
cleanup contractors) also has implemented reforms which streamlined its rapid action
cleanup authority. EPA's Superfund Accelerated Cleanups Model (SACM) accelerates
cleanup and risk reduction at sites by consolidating site-assessment into a one-step
process. SACM includes the following initiatives: taking early actions while assessing
long-term cleanup; using "presumptive" remedies where appropriate; initiating
enforcement activities earlier; and addressing the worst threats to people and the
environment first. SACM reduces cleanup time through a single, continuous site
assessment and early action process. EPA has now completed over 3,800 removal
actions, including the more recent SACM removals, at over 2,900 Superfund sites, thereby
removing significant threats to public health and the environment. At the Southern
Shipbuilding Corporation Superfund Site in Slidell, Louisiana, EPA conducted several
emergency actions to prevent the catastrophic release of hazardous materials into Bayou
Bonfuca. Through an accelerated combination of waste incineration, removal actions, and
investigations, EPA rapidly reduced human health and environmental risks, and ensured
that a site which was once a threat to downstream properties is now available for future
development.
Choosing the Right Remedy
The Agency is saving time and money by using standardized or "presumptive" remedies
for certain types of sites. Presumptive remedies are based on scientific and engineering
analyses performed at similar Superfund sites and are used to eliminate duplication of
effort, facilitate site characterization, and simplify analysis of cleanup options. EPA issued
presumptive remedy guidances for the following: municipal landfill sites; sites with
volatile organic compounds in soil; wood treater sites (with an update two years later);
and a ground water presumptive response strategy. Regions are reporting significant
reductions in costs and time required to complete remedies. A recent Office of Inspector
General report focused on an independent review of the use of a presumptive remedy and
concluded that "Use of a Presumptive Remedy increased consistency in decision making
by taking advantage of lessons learned at similar sites, and allowed speedup of the
Feasibility Study process."
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REDUCING REMEDY COSTS
Taking a Second Look
Taking a second look at remedies is creating substantial future cost reductions for parties
at complex, high cost Superfund sites across the country. The EPA's newly established
National Remedy Review Board is reviewing high-cost cleanup plans prior to final remedy
selection. Overall, the Board's preliminary analysis indicates potential reductions in the
range of $15-30 million in total estimated future costs for reviews completed during
FY96.
Clarifying the Role of Cost in the Remedy Selection Process
Through a recently issued fact sheet, EPA summarized information on the role of cost in
the Superfund program which was, prior to this point, scattered in guidance, statutes, and
regulations. EPA's aim is to ensure that all stakeholders involved in the Superfund
process fully understand the important role of cost in remedy selection under both existing
law and policy and in recent initiatives aimed at enhancing the cost-effectiveness of
remedial actions.
Using Technology and Science Updates to Save Money
Approximately $280 million in future cost reductions are predicted as a result of the
Agency's review and update of earlier remedy decisions. Many remedy selection decisions
now in place were made in the early years of the Superfund program and were based on
"state-of-the-knowledge-and-practice" available at the time. Where science and
technology have advanced and adequate levels of public health and environmental
protection are assured, EPA is revising remedies where future cost reductions can be
achieved while still maintaining appropriate levels of protection.
BETTER LAND USE ASSUMPTIONS IN REMEDY SELECTION
EPA has improved its cleanup decisions by more routinely using reasonable assumptions
about current and future land use. Recognizing that land may be appropriate for industrial
uses, rather than residential uses, can yield a more realistic risk assessment and more cost-
effective remedy selection. EPA is reaching out to local land use planning authorities,
other government officials and the public as early as possible during site investigation to
discuss land use issues. EPA also is making extra efforts to reach out to communities
which may have environmental justice concerns to ensure that they are fully
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informed and able to participate in these decisions. Currently, only 38% of EPA's
Records of Decision (RODs) include residential land use scenarios, typically where there is
residential land use on-site or adjacent to the site.
PROMOTING ECONOMIC REDEVELOPMENT
EPA is promoting redevelopment of abandoned and contaminated properties across the
country that were once used for industrial and commercial purposes ("brownfields").
EPA believes that environmental cleanup is a building block, not a stumbling block, to
economic development and that revitalizing contaminated property must go hand-in-hand
with bringing life and economic vitality back to communities. EPA's Brownfields
Economic Redevelopment Initiative places a new focus on brownfields. The Brownfields
reforms are directed toward empowering States, communities, and others to work
together to assess, safely clean up, and sustainably reuse these sites. EPA efforts are being
accomplished through the Brownfields Action Agenda - an outline of specific actions the
Agency is conducting.
Brownfields Pilots are Encouraging Redevelopment
The Brownfields Assessment Pilots form a major component of the Brownfields Action
Agenda. EPA exceeded its commitment to fund at least 50 pilots by actually funding 76
pilots at up to $200,000 each by the end of 1996. These two-year pilots are intended to
generate further interest in Brownfields redevelopment by bringing together public and
private efforts including Federal, State, and local governments. The Brownfield pilots will
develop information and strategies that promote a unified approach to site assessment,
environmental cleanup, and redevelopment. Many different communities are participating,
ranging from small towns to large cities. Stakeholders tell the Agency that Brownfields
development activities could not have occurred in the absence of EPA efforts. As the
National Community Reinvestment Coalition (NCRC) said "[W]e wholeheartedly support
the EPA's Brownfields Economic Redevelopment Initiative. NCRC believes that [EPA's]
multifaceted initiative represents a significant step forward by the Administration in
working with distressed communities on the local level in their revitalization efforts."
Getting Sites off the "List"
Prior to reform, EPA kept track of all potential hazardous waste sites in an inventory
known as the Comprehensive Environmental Response and Liability Information System
(CERCLIS). Even sites where no further Federal Superfund interest was warranted
remained in the CERCLIS inventory. This practice led to unintended barriers to the
redevelopment of these properties because sites listed in CERCLIS could be automatically
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considered risky by some lenders, making it difficult for potential purchasers to secure
loans to develop these properties. To avoid this result, EPA redefined CERCLIS, deleting
or archiving sites from the active CERCLIS inventory. EPA has archived over 27,000
sites (e.g., sites where 'no further remedial action [is] planned') from CERCLIS to date,
and EPA expects to archive over 1,000 additional sites from CERCLIS per year over the
next several years.
Removing Redevelopment Barriers Based on Liability Concerns
EPA is promoting redevelopment of contaminated properties by protecting prospective
purchasers, lenders, and property owners from Superfund liability. EPA's "prospective
purchaser" policy is stimulating the development of sites where parties otherwise may
have been reluctant to take action by clarifying (through agreements known as
"prospective purchaser agreements") that bona fide prospective purchasers will not be
responsible for cleaning up sites where they did not contribute to or worsen
contamination. EPA issued new guidance in May 1995, which allowed the Agency
greater flexibility in entering into such agreements. The new guidance expanded the
universe of sites eligible for such agreements to include instances where there is a
substantial benefit to the community in terms of cleanup, creation of jobs, or development
of property. Of the 45 agreements to date, over 50% have been reached since issuance of
the May 1995 guidance. At the Indiana Woodtreating Site near Bloomington, Indiana, the
work performed under a prospective purchaser agreement will prevent contaminants from
entering Clear Creek, which is a drinking water source for the City of Bloomington,
Indiana.
People owning property under which hazardous substances have migrated through ground
water also feared liability under the statute. EPA responded by announcing that it will not
take enforcement actions under CERCLA against owners of property situated above
contaminants which have migrated in ground water, but where the property is not also a
source of contamination. Further, EPA also will consider providing protection to such
property owners from third party lawsuits through a settlement that affords contribution
protection.
EPA gave reassurance to the lending industry and to government entities acquiring
property involuntarily. EPA outlined in guidance what it considered appropriate actions a
lender may undertake without becoming a liable party. In September 1996, Congress
passed an amendment very similar to EPA policy and guidance on lenders. EPA also is
providing assurances ("comfort/status letters") in appropriate circumstances to new
owners, lenders, or developers that they need not fear incurring Federal environmental
liability.
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INVOLVING AND INFORMING COMMUNITIES
Communities Getting Involved in Remedy Selection
EPA is promoting "consensus-based" approaches to the remedy selection process by
involving community stakeholders in pilots. This effort is intended to empower local
citizens and other stakeholders to achieve mutually acceptable remedies that meet
statutory and regulatory requirements and, of course, make common sense. At the Lower
East Fork Poplar Creek Site in Oak Ridge, Tennessee, the cleanup strategy that was
agreed to in August 1995 reflected the voice of the local community in the remedy
selection process. This included input into a change in cleanup goals. Through a citizens
working group established by the Department of Energy working in partnership with EPA
and the State of Tennessee, the citizens' influence on the remedy selection decision saved
over $100 million and helped protect human health and the environment more quickly.
Giving Stakeholders a Voice
EPA established an Ombudsman in every Region to serve as a direct point of contact for
stakeholders to address their concerns under Superfund. Prior to this reform, stakeholders
worked out concerns with Regional personnel, but had no formal mechanism for having
their issues facilitated further. The Ombudsmen now serve as facilitators for stakeholders
on concerns that have not been resolved between Regional personnel and the stakeholder
through informal means. The Ombudsman reports to a top Regional management official
in every Region to assure management attention to issues raised.
Improving Public Access to Superfund Information
EPA recognized that improving communication with stakeholders and improving access to
Superfund information will help the public become more aware of, and informed about,
Superfund. EPA is using electronic tools to improve communication, including having
sites for both the Office of Emergency and Remedial Response (OERR) and the Office of
Site Remediation Enforcement (OSRE) on the Internet, with separate pages devoted to
Superfund reform. Each Region also is developing home pages which will include
information on Regional Superfund programs, such as Superfund site lists, site-specific
information, successful site cleanup actions, and links to State Superfund activities.
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GETTING STATES AND TRIBAL GOVERNMENTS 'INTO THE ACT'
State Programs Speed Cleanup ofNon-NPL Sites
EPA recognizes the important role that State environmental agencies have in encouraging
economic redevelopment of brownfields. EPA plans to provide $10 million, earmarked in
FY97 appropriations, to encourage the development or enhancement of State programs
that encourage private parties to voluntarily undertake protective cleanups of less
seriously contaminated sites. EPA issued a memorandum setting out an interim approach
for its relations with State voluntary cleanup programs. The memorandum includes
criteria for State voluntary cleanup programs that are enabling EPA and the States to start
negotiating a division of labor between EPA and the States in memoranda of agreement
(MO As). Even before these criteria were set out, eight States worked out MO As with
EPA regarding sites cleaned up under voluntary cleanup programs.
Greater Power for States in Picking Remedies
EPA is sharing its authority to select remedies with qualified States and Tribes and to
decide which sites to list on the NPL. States selected for this reform enter into
agreements through which they conduct the remedy selection process, consistent with
applicable law and regulations. Participating States supervise the entire remedy selection
process with minimal EPA oversight or involvement, giving the State significantly more
control than usual over NPL site cleanups.
MAKING THE LIABILITY SYSTEM WORK BETTER
A core principle of the Superfund program is that the cost of cleaning up toxic waste sites
should be borne by the parties responsible for disposing of the waste. EPA's
"Enforcement First" strategy has assured that responsible parties perform or pay for more
than 70% of long-term cleanups, thereby conserving the Superfund trust fund for cleaning
up sites for which no viable responsible parties can be identified.
At the same time, EPA has reformed the way it administers the Superfund liability
program to encourage parties to settle, rather than to litigate, and to enhance the fairness
and equity of settlements.
Testing Alternatives
EPA is conducting pilots that test a fundamentally different approach to the allocation of
Superfund costs (called the allocations pilots). Under this approach, PRPs may settle their
liability based upon their share of cleanup costs. A neutral party known as an allocator,
Page xiv December 1996
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selected by parties to the process, conducts an out-of-court allocation. The allocator
assigns shares of responsibility for cleanup costs among all PRPs at a site. Under this
scheme, EPA expects to pay the "orphan share," which includes the shares of parties
which are defunct or insolvent. To date, EPA has offered allocation pilots at 12
Superfund sites. The pilots have been useful in identifying problems and have indicated
the need for flexibility to meet site-specific circumstances. Other lessons regarding the
pilots are set out in more detail in the accompanying Annual Report.
Recognizing the Orphan Share
Through implementation of its 1996 "orphan share compensation" policy, EPA is
encouraging responsible parties to agree to perform cleanups and is enhancing the fairness
of settlements. Without a settlement, responsible parties at a site are potentially liable
under the Superfund law for the entire cost of the cleanup, including the share that might
be attributable to other parties that are insolvent or defunct. Under the new orphan share
compensation guidance, however, EPA has offered, and will offer, to forgive a portion of
its past costs and projected future oversight costs in cleanup settlements to cover some or
all of the orphan share at the site. This creates a major incentive for responsible parties to
agree to perform the cleanup without litigation, and reduces transaction costs by
addressing arguments over who should bear the burden of the orphan shares. This
compromise is in addition to any other compromises that may be reached because of other
factors. In FY96, the Agency offered to compromise over $57 million in orphan share
compensation to potential settling parties at 24 sites across the United States.
Getting Parties Out Early
EPA's reforms are getting thousands of small volume waste contributors out of the
liability system. PRPs that are liable for cleanup costs have sometimes sued huge numbers
of smaller companies that had little or no connection to the toxic contamination -
sometimes simply by naming every business in the local yellow pages as a defendant in a
contribution lawsuit. EPA's reforms have responded to the burden this can place on
parties that made a very limited contribution to the pollution at a site by using its
settlement authority to get small waste contributors out of Superfund litigation. To date,
the government completed settlements with over 14,000 small volume contributors of
hazardous waste at hundreds of Superfund sites. These settlements protect the settling
parties from burdensome private contribution suits. In addition, EPA has stepped in to
prevent the big polluters from dragging untold numbers of the smallest "de micromis"
contributors of waste into contribution litigation by publicly offering to any such party $0
settlements that would preclude lawsuits by other PRPs.
December 1996 Pagexv
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Reducing Costs for PRPs Through Reduced Oversight
PRPs incur costs at sites in part because of EPA's need to oversee the quality of the work
they are doing. Oversight is the process EPA uses to ensure that all studies and work
performed by PRPs are technically sound and comply with the statute, regulations,
guidances, policies, and the signed settlement agreement. Oversight may include
submission of reports for approval, meeting interim milestones, or the scheduling of field
visits. As the Superfund program matures, parties performing work at sites have
developed a considerable body of experience in conducting response activities at sites.
EPA can reduce oversight of such parties while continuing to exercise sufficient oversight
to ensure that the work is performed properly and in a timely manner.
Already, EPA Regions have initially identified approximately 100 sites where reductions in
oversight of ongoing work for cooperative and capable PRPs have occurred or will occur
- significantly reducing costs at some of these sites. EPA also may look at opportunities
to involve communities in deciding the appropriate level of PRP oversight.
How IT ADDS UP
These are just the highlights. Over the past four years, EPA's reform effort has included
implementing well over 50 initiatives in its determination to reform the Superfund
program. A very few of the initiatives have ended or will end because they were pilots
that EPA has used to test alternative ways of doing business and learn what might work
best. Most are permanent and fundamental changes to make the Superfund program
faster, fairer, and more efficient. EPA is committed to solidifying and building on these
changes to continue to run the Superfund program better.
Page xvi December 1996
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SUPERFUND REFORMS ANNUAL REPORT FISCAL YEAR 1996
SUMMARY OF STATUS AND NEXT STEPS, ROUND 3
Administrative Reform
Status
Next Steps
la. Establish National Remedy
Review Board
All Regions and eight other Agency offices have designated representatives to the National
Remedy Review Board (NRRB). The RRB has reviewed 12 proposed decisions at 11 sites. Of
the 12, five have progressed to "final ROD," and one to "proposed plan." As a result of these
six reviews, the Agency expects to realize future cost reductions of approximately $8 million.
Overall, the Board's preliminary analysis indicates potential reductions in the range of $15
million to $30 million in total estimated site cleanup costs.
As of October 10, 1996, the RRB estimates there may be as many as 10-20
decisions reviewed in FY97.
Ib. Establish New Remedy
Selection Management Flags
("Rules-of-Thumb")
EPA developed two fact sheets that were sent out for review by EPA Regional Offices, other
Federal agencies, and State environmental agencies in August 1996. The first fact sheet
describes remedy selection rules-of-thumb, or key principles and expectations, corresponding to
three policy areas in the Superfund remedy selection process. The second fact sheet describes a
set of proposed management review triggers to promote nationally consistent remedy selection
decision-making.
EPA will revise both fact sheets based on comments received. The rules-of-thumb
fact sheet will be issued as guidance to EPA Regional offices as soon as comments
have been incorporated (expected timeframe - second quarter FY97). The revised
draft of the proposed management review triggers will be presented at a national
Superfund program managers' meeting as the basis for a discussion on updating
and consolidating management consultation requirements for Superfund remedy
selection decisions. The management consultation process will be revised in
FY97.
2. Update Remedy Decisions at
Select Sites
EPA issued this Reform guidance on September 27, 1996; however, many Regions anticipated
its issuance, and completed a number of remedy updates earlier in FY96. During FY96,
remedy updates of all types that achieved savings resulted in a total savings of over $280
million. Of this $280 million, over $250 million resulted from updates of the kind identified in
the Reform guidance.
Headquarters will continue to work with the Regions on implementation of this
reform.
3a. Clarify the Role of Cost in the
Remedy Selection Process
EPA issued a fact sheet, "The Role of Cost in the Superfund Remedy Selection Process," on
September 10, 1996. Through the distribution of this fact sheet, EPA hopes to ensure that all
stakeholders involved in the Superfund process fully understand the important role of cost in
remedy selection under existing law and policy and recent initiatives aimed at enhancing the
cost-effectiveness of remedial actions.
Implementation of this reform is complete.
3b. Directive on National
Consistency in Remedy
Selection
The Agency issued a Directive entitled "National Consistency in Superfund Remedy Selection"
(from Elliott P. Laws to Regional Division Directors) on September 25, 1996. This directive
emphasizes the critical importance of maintaining appropriate national consistency in the
Superfund remedy selection process and requests that program managers make full use of
existing tools and consultation opportunities to promote such consistency.
EPA begins initiation of efforts to review and consolidate management
consultation requirements/activities in fall 1996.
4. Clarify Information
Regarding Remedy Selection
Decisions
EPA developed a draft summary sheet that was sent out for review by EPA Regional offices,
other involved Federal agencies, and State environmental agencies in August 1996. The
summary sheet provides a tool for clearly presenting, in a standardized format, the context,
basis, and rationale for site-specific Superfund remedy selection decisions.
Once comments are incorporated, EPA will issue the summary sheet as an interim
product and explore its use as a suggested format for summarizing critical site
information in support of Agency management briefings. Federal Facilities will
also be invited to pilot its use in their programs as well.
Exhibit A
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Administrative Reform
5a. Community Participation in
Designing Risk Assessments
5b. PRP Performance of Risk
Assessments
6a. Establish National Criteria on
Superfund Risk Assessments
6b. Standardize Risk Assessments
6c. Utilize Expert Workgroup on
Lead
7. Establish Lead Regulator for
Federal Facilities
8. Consider Response Actions
Prior to NPL Listing
9. Delete Clean Parcels from the
NPL
Status
EPA will pilot a process for involving stakeholders early in the risk assessment process.
Headquarters staff is currently working with the Regions to identify candidate sites. Many
Regions currently involve stakeholders in designing site-specific risk assessment and in the site
assessment process. Several Regions have either developed fact sheets or additional guidance
on this reform.
On January 26, 1996, EPA issued a new policy to allow PRPs to conduct a risk assessment at
most sites where they are also performing the RI/FS. The new policy removed the previous
need for the Regions to consult with Headquarters before authorizing a PRP to conduct the risk
assessment. Eight Regions have indicated that they are identifying sites where PRPs will be
conducting the risk assessments.
The Agency has prepared draft documents that: outline technical approaches to risk assessment,
standardize risk assessment reporting data tables, and provide risk assessment quality assurance
checklists. A workgroup has completed a preliminary review of the outlined technical approach
and the standardized risk assessment data reporting tables. EPA issued draft standard risk
assessment data reporting tables in July 1996. Comments have been received and are being
addressed by EPA.
EPA has drafted short issue reports that are being used broaden dialog within the Agency and
with outside stakeholders. EPA has identified technical and policy issues in 14 focus areas.
An April 17, 1996 memorandum to senior Regional managers included a request for
information on residential lead risk assessments. A draft plan also was proposed for achieving
these goals. Comments on the draft plan were received at the end of May. Currently, the
analysis of residential lead risk assessments is in the planning stages.
Headquarters has convened a workgroup to develop guidance on identification and
implementation of the single regulator concept. Headquarters has held 13 workgroup meetings
since the fall of 1995. Some Regions have been able to begin implementing this concept in
advance of guidance issuance.
EPA HQ has worked with the Regions and States during FY96 to develop a policy directive to
implement this reform. EPA HQ is currently evaluating different options that would take into
account response actions occurring in the post-site inspection stage and their impact on NPL
listing. In August 1996, HQ OERR conducted another round of review and comment on the
reform and identified the critical issues to be resolved.
EPA sent guidance to map and track partial deletions at NPL sites to the Regions on April 30,
1996. EPA published four Notices of Intent to Delete (NOIDs) in three Regions during 1996.
In addition, Region 10 published two partial deletion notices in 1996. Other Regions are re-
evaluating sites to determine if a partial deletion is warranted.
Next Steps
Pilots will be evaluated using a case-study approach. Findings will then be used to
develop guidance describing the role of community stakeholders in the risk
assessment process.
Implementation of this reform is complete.
The workgroup will issue a generic Statement of Work (SOW) on risk assessments
in September 1997.
Information from stakeholder dialog meetings will be evaluated and individual
issues will be assigned to work groups to be further developed and addressed.
EPA convened a national workshop on model validation in October 1996.
Regional support is needed for sending information to Headquarters, establishing
an effective structure for dialog, and other issues. Contractor efforts will have
standard operating procedures for collection of data that will be reviewed by the
Technical Review Workgroup for lead risk assessments.
The workgroup will complete major deliberations and EPA will draft guidance and
circulate guidance more widely to States for their input. EPA will issue final
guidance in mid-FY97.
EPA will review and summarize State comments, as well as cross-reference them
against EPA Regional comments for any final issues that need to be addressed.
EPA should finalize the reform in FY97. The October 1992 NPL regulation,
"Guidance for Setting Priorities for NPL Candidate Sites," will be amended by
FY97.
Many Regions have indicated that they have sites where they would like to delete
portions and Headquarters has received several draft NOIDs for review.
Exhibit A
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Administrative Reform
10a. Promote Risk-Based Priority
Setting at Federal Facility
Sites
lOb. Promote Risk-Based Priority
for NPL Sites
11. Orphan Share Compensation
12. Site Specific Special Accounts
13. Fquitable Issuance of
Unilateral Administrative
Orders (UAOs)
14. Revised De Micromis
Guidance
15. Adopting Private Party
Allocations
16. Reduced Oversight for
Capable and Cooperative
PRPs
Status
Headquarters has obtained internal comments (including Regional input) on guidance drafted
for the Regions which will address the role of risk and other factors (e.g., cost, community
concerns, environmental justice, cultural considerations) in setting priorities at Federal facility
sites. Regions have begun to implement the concept of risk-based priority setting at Federal
facility sites.
Projects are evaluated based on five criteria: 1) risks to humans; 2) ecological risks; 3) stability
of contaminants; 4) contaminant characteristics; and 5) economic, social, and program
management considerations. During FY96, 42 projects totaling over $276 million were funded
in accordance with National Risk-Based Priority Panel (Panel) recommendations. By early
FY97, the Panel had ranked projects approaching $1 billion in cleanup costs. The Panel met in
October 1996.
Interim final guidance was issued on June 3, 1996. A Headquarters assistance team has been
established to assist with the implementation of this reform. The team is working closely with
DOJ and the Regional staff to implement this reform. The Agency offered over $57 million in
FY96 to potential settling parties in recognition of the orphan share at 24 Superfund sites across
the United States.
In implementing this Reform, the Regions established 23 Special Accounts in FY96, containing
a total of $78 million. As of September 30, 1996, EPA has set up a cumulative total of 59
Special Accounts. The total balance of funds available in Special Accounts is $261 million,
representing $226 million in principal. Thirty-five million dollars in interest (interest is through
August 31, 1996) is also now credited to these accounts and is available for future response
actions at each site.
EPA issued a memorandum to the Regions in August 1996 that establishes procedures for
Regional Staff to document their reasons for proposing that certain PRPs be excluded from
UAOs. The guidance also reaffirms EPA policy to issue such UAOs to the largest number of
PRPs appropriate.
On June 3, 1996, EPA has issued new guidance and models designed to streamline and
simplify the process to protect contributors of extremely small amounts of waste (de micromis
contributors) by creating routine settlement practices where practicable.
EPA established a national workgroup to determine the parameters and identify opportunities
for implementation of this reform. The Agency has adopted private party allocations at several
sites, including the Doepke Holliday Site in Kansas where the PRPs will perform the cleanup of
the site and reimburse 100% of EPA response costs.
On July 31, 1996, an EPA Regional/Headquarters workgroup issued a six-page directive to
implement this new reform. EPA Regions have identified approximately 100 sites where
reductions in oversight of ongoing work for cooperative and capable PRPs have occurred or will
occur, significantly reducing costs at some of these sites.
Next Steps
EPA will issue final guidance in the second quarter of FY97.
The Panel will reconvene in early spring 1997.
In FY97, EPA will continue to bear a portion of the orphan share by compromising
costs at sites where parties agree to perform cleanups. These agreements follow the
Agency guidance issued in June 1996 and are limited by existing appropriations.
In addition, EPA will be considering possible changes to the guidance, including
applicability to early de minimis settlors, within the bounds of these parameters.
EPA will be providing general program and financial guidance to the Regions in
the near future. The Agency will continue to monitor the success of this reform.
During FY97, the Agency will establish a process for ensuring that the Regions
prepare the necessary documentation.
EPA will continue to identify those sites where implementation of this reform is
appropriate.
The workgroup determined that current Superfund policies are adequate for
providing direction to implement the reform and, as a result, no new guidance is
planned at this time.
Regions will notify cooperative parties that they have already received reduced
oversight or will receive reduced oversight. Regions will be encouraged to provide
PRPs with an up-front estimate of contractor costs for oversight.
Exhibit A
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Administrative Reform
17. Authorize Remedy Selection
by States and Tribes
18. Pilot Community-Based
Remedy Selection Process
19. Establish Superfund
Ombudsman in Every Region
20. Improve Communication with
Superfund Stakeholders
Status
EPA has shared information regarding Regional efforts in shifting remedy selection to the
States. The National workgroup has developed criteria and a process to select new pilots and to
monitor and assess the results.
Regions have identified sites where they are using or plan to use a consensus-based approach to
select a remedy for a site. In an Oakridge, Tennessee site, $160 million in cleanup costs were
saved through community participation.
All 10 Regions nominated an Ombudsman by the prescribed date of March 31, 1996. The Joint
Headquarters-Regional Workgroup (Workgroup) attended the first EPA Ombudsman
Conference and Training Seminar.
EPA activated the Headquarters Superfund Homepage in March 1996. All of the Regional
offices also have developed homepages.
Next Steps
By winter 1997, EPA will develop "lessons learned" for past and ongoing pilots
and will identify new pilots.
A Headquarters/Regional workgroup will look at sites to identify factors that affect
community understanding and participation in the cleanup process. By December
1996, the workgroup will issue guidelines on empowering local citizens and
stakeholders.
The Workgroup will continue to provide assistance to the Regional Ombudsmen as
needed and will also perform periodic evaluations. The Superfund Regional
Ombudsmen will have another conference in early 1997 to further refine their
negotiation, facilitation, and conflict resolution skills.
A workgroup involving Headquarters and the Regions will develop procedures for
consistency of electronic information and will identify sites and stakeholder groups
to use as pilots for sharing electronic information.
Exhibit A
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SUPERFUND REFORMS ANNUAL REPORT FISCAL YEAR 1996
SUMMARY OF STATUS AND NEXT STEPS, ROUND 2
Administrative Reform
Status
Next Steps
1. PRP Search Pilots
In 1995, EPA held a national conference on PRP search procedures and is now reorienting the
PRP search process to facilitate expedited settlements and more fully identify a larger universe
of PRPs earlier in the process. EPA provided early PRP search resource packages for Regional
pilot participants. Using at least one streamlining technique, EPA is conducting pilot searches
at 15 sites under Superfund Reauthorization Act of 1994 (SRA) provisions to determine the
feasibility of the proposed search timeframe.
EPA expects to finalize the Revised PRP Search Manual in early 1997, after
Regional review and comment. Other actions EPA has tentatively planned include
Regional training/information-sharing. EPA may hold a national conference in
1997.
2. Expedited Settlements
EPA developed the following tools to assist with the settlement of de minimis and ability-to-pay
parties under this reform: 1) "Overview of Ability-Pay-Guidance and Models" (fact sheet), 2)
"Standardizing the De Minimis Premium" (guidance document), 3) Revised Model CERCLA
Section 122(g)(4) De Minimis Contributor Consent Decree (guidance model), and 4) Revised
Model CERCLA Section 122(d)(4)De Minimis Contributor Administrative Order on Consent
(guidance model). To date, EPA has successfully completed five expedited settlements.
EPA will continue to emphasize the importance of removing small waste
contributors from the Superfund enforcement process. Several expedited
settlement pilots are ongoing. EPA also intends to issue four policy documents
regarding the ability-to-pay determinations in Superfund settlements.
3. Allocation Process
As of September 1996, EPA has offered to pilot the allocation process at twelve Superfund sites.
Two of the sites reached settlement outside the allocation process, leaving ten active pilot sites.
EPA has learned numerous lessons about the allocation process, including: identifying
additional PRPs through a nominations process requires collaboration between the Agency and
PRPs; allocator selection, hiring, and payment may need revision; resolution of issues during
the allocation process benefits the parties and expedites settlement; and settlement before the
allocator's report may be an option.
The Agency will continue to implement the allocation process at pilot sites.
4a. Brownflelds Pilot Projects
By the end of FY96, EPA announced the selection of 76 Brownfields pilots to be funded
through cooperative agreements at up to $200,000 each for a two-year period. EPA has signed
Memoranda of Understanding with other Federal partners to coordinate issues related to
Brownfields redevelopment and to leverage additional opportunities. Guidance and other
initiatives have been announced by EPA. The "Asset Conservation, Lender Liability, and
Deposit Insurance Protection Act of 1996" was passed. EPA has archived over 27,000 sites
from CERCLIS.
EPA will announce an additional 25 pilots in FY97 and will provide guidance and
funding to capitalize revolving loan funding programs. EPA will announce new
Action Agenda commitments beginning calendar year 1997.
4b. Community Outreach
Each Region has established a Brownfields coordinator and headquarters has assigned five staff
members to support the project. EPA is promoting and fostering job development and training
through partnerships with Brownfields pilot communities and community colleges. EPA has
established an environmental education and training center to provide comprehensive technical-
level training.
EPA will continue outreach to stakeholders on Brownfields involvement.
Technical assistance will be provided through existing partnerships and pilots to
other Federal agencies and non-governmental organizations.
4c. Refining CERCLIS
In June 1996, EPA provided guidance on site types eligible for archiving and initiated efforts to
research sites in CERCLIS and make archive decisions. Approximately 27,000 total sites have
been archived from CERCLIS through FY96.
EPA anticipates archiving over 1,000 additional sites from CERCLIS per year
over the next several years based on completing Superfund activities at existing
and new sites.
Exhibit B
Page B-l
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Administrative Reform
Status
Next Steps
4d. Clarifying NPL Sites
EPA sent guidance to the Regions to map and track partial deletions at NPL sites on April 30,
1996. Several Regions have published Notices of Intent to Delete (NOIDs) and the Regions are
re-evaluating sites to determine if a partial deletion is warranted. EPA issued final soil
screening guidance in May 1996.
The partial deletions portion of this reform is currently being implemented as
Reform 9 (i.e., Delete Clean Parcels from the NPL) in the third round of Superfund
reforms.
4e. Removing Liability Barriers
EPA issued the following guidance documents that provide some assurance to prospective
purchasers, lenders, and property owners that they need not be concerned with Superfund
liability: "Guidance on Agreements with Prospective Purchasers of Contaminated Property";
"Policy Towards Owners of Property Containing Contaminated Aquifers"; "Policy on
CERCLA Enforcement Against Lenders and Government Entities that Acquire Property
Involuntarily;" and "Policy on the Issuance of Comfort/Status Letters."
Efforts will continue on the development of tools to provide some assurance that
entities dealing with contaminated property need not fear incurring Federal
environmental liability. To identify, describe, and differentiate between the
various tools available, EPA is creating the "Catalog of Tools for Managing Risk
at Contaminated Properties."
5a. Community Advisory Groups
(CAGs)
EPA issued the "Guidance for Community Advisory Groups at Superfund Sites" in December
1995, encouraging the use of CAGs at sites. As of September 1996, there were 23 CAGs. EPA
has completed a document containing case studies on five CAGs planned for distribution early
in FY97.
EPA will continue to evaluate existing CAGs and their impact on community
involvement, and identify and develop new tools to promote and assist CAGs.
Several fact sheets on the CAG program should be ready for distribution early in
FY97.
5b. Technical Assistance Grants
(TAGs)
During FY95-96, EPA revised the TAG rule. The new rule contains several provisions to
simplify the TAG process. The provisions include: cash advances for grantees to provide them
with working capital; elimination of the three-year budget period which allows groups to
determine their own budget period according to site-specific needs; and the removal of the 20%
administrative cap.
Preparations are underway to publish the proposed, revised TAG rule by June
1997. Additionally, options are being explored to authorize the use of TAG funds
for training and advance funding.
6. Community Involvement in the
Enforcement Process
EPA initiated pilot projects at 13 sites in nine Regions. Piloted activities include community
involvement in Statements of Work (SOWs), Feasibility Studies (FSs), and Remedial
Designs/Remedial Actions (RD/RAs), and community communication and cooperation with
PRPs.
EPA is evaluating the impacts of enhanced community involvement on both the
settlement negotiation process and the studies and cleanups themselves to identify
those techniques that are most successful in strengthening community
participation.
7a. Training and Health Service
Assistance to Communities
The Medical Assistance Plan (MAP) was established to help under-served people living near
hazardous waste sites. Although four sites were targeted for testing during FY95, funding was
available to test only one site, the Del Amo/Montrose site in Torrence, California. At the Del
Amo site, EPA's Region 9 office has taken steps to temporarily relocate residents living near the
Superfund site.
EPA obligated $400,000 to continue the Del Amo project in FY96. In addition,
EPA and the Public Health Service will continue to seek funds sufficient to finance
additional pilot projects in FY97.
7b. Job Training and Development
EPA is facilitating locally coordinated planning both to provide quality worker training and to
ensure that brownfields sites hire workers from local job training programs. EPA has awarded
20 National Institute of Environmental Health Sciences (NIEHS) minority worker training
grants. EPA is working with the Hazardous Materials Training and Research Institute
(HMTRI) to expand environmental training and curriculum development at community
colleges near Brownfields pilot communities.
EPA plans to continue to work with the NIEHS minority worker training program
and hopes to develop additional pilots in brownfield areas. The Agency has chosen
two pilot sites for environmental curriculum development. HMTRI plans to
increase the number of community colleges offering environmental work force
training programs over the next year.
Exhibit B
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Administrative Reform
8. Guidance for Remedy Selection
9a. Risk-Sharing: Implementing
Innovative Technology
9b. Risk-Sharing: Identifying
Obstacles to Using Innovative
Technology
10. Voluntary Cleanup Program
11. Integrated Federal/State/Tribal
Site Management Program
12. State/Tribal Superfund Block
Funding
Status
EPA issued final soil screening guidance on May 17, 1996 which complements the ongoing
Superfund Accelerated Cleanup Model initiative and provides the framework for other cleanup
efforts. On May 25, 1995, EPA issued a directive titled "Land Use in the CERCLA Remedy
Selection Process" which clarifies that land use should be considered in risk assessment and
remedy selection. The Agency has issued various presumptive remedies, presumptive response
strategies, and user's guides. EPA estimates time savings from 36% to 56% and future cost
reductions up to 60% at municipal landfill pilots.
Several Regions have identified candidate sites for the risk-sharing initiative. In Region 1, EPA
has entered into a risk sharing agreement with PRPs at a New Hampshire site. EPA agrees to
pay half the cost of the innovative technology, not to exceed $3.5 million, if the technology does
not fulfill expectations and additional remedial action is necessary.
EPA is expanding the coverage of indemnification to include both the prime contractor and the
innovative technology contractor when indemnification is offered so that the contractors can
more easily pursue the use of innovative technologies.
EPA issued a memorandum in November 1996 on an interim approach for Regional relations
with State voluntary cleanup programs. This memorandum sets out baseline criteria that will be
considered as part of the evaluation of a State or Tribe's application for funding the
development or enhancement of a voluntary cleanup program. Eight States have already signed
Memoranda of Agreement (MOA) with their respective Regions concerning how EPA and the
States will work together in addressing voluntary cleanup program sites.
On May 2, 1995, EPA issued final guidance on a program which allows EPA to defer from
considering listing NPL-caliber sites on the NPL while States and Tribes initiate and oversee
PRP responses. Since 1994, a total of eight sites have been formally deferred, while several sites
have been informally deferred or are under consideration for deferral.
EPA has established a 50-member work group on block funding which includes input from 17
States and Tribes. Ten States and one Tribe are currently participating in efforts to pilot the
block funding concept. Their discussions will be used in the development of the final report for
this reform.
Next Steps
EPA is developing a new land use directive and presumptive remedy guidance on
manufactured gas plants, PCB sites, VOCs, municipal landfills, metals in soil, and
grain storage for issuance in FY97.
The Agency is in the process of preparing guidance on implementing the risk
sharing initiative, which is expected by June 1997. EPA is developing
mechanisms to engage State agencies in this initiative.
Implementation of this reform is complete.
EPA and the States will assess how the MOA process is working and will seek
public comment on and finalize guidance on State voluntary cleanup programs by
theendofFY97.
The Agency will continue to implement the deferral program.
EPA is scheduled to develop a preliminary report documenting obstacles in the
award and utilization of Superfund resources and providing recommendations to
improve the award and utilization of Fund monies to States and Tribes early in
FY97.
Exhibit B
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SUPERFUND REFORMS ROUND THREE
I. CLEANUPS
1. ESTABLISH COST-EFFECTIVENESS THRESHOLDS AND NEW RULES-OF-THUMB
la. Establish National Remedy Review Board
Description: EPA created the National Remedy Review Board (NRRB) to help control
remedy costs and promote consistent and cost-effective decisions at Superfund sites. The
NRRB reviews proposed cleanup actions at sites where: 1) estimated costs for the
preferred alternative are over $30 million; or 2) proposed remedy costs are over $10
million and 50% greater than the costs of the least-costly, protective alternative action that
also complies with Applicable or Relevant and Appropriate Requirements (ARARs).
The NRRB helps to control remedy costs by providing a cross-Regional, management-
level review of high costs (and thus, potentially controversial) decisions in "real time" on a
site-specific basis. Its overall goal is to ensure sound decision-making that is consistent
with current statutes, regulations, and guidance. The NRRB considers the nature of the
site, the accuracy of the cost estimates, the risks posed by the site, and other additional
relevant factors.
The NRRB is composed of EPA senior managers and technical experts from Headquarters
and each Region. The NRRB issues advisory recommendations on proposed remedies
that meet established cost criteria. Although NRRB decisions are not binding, it is
expected that Regional decision-makers will give the NRRB's recommendations
substantial weight. The NRRB has already contributed greatly to improved consistency
and cost-effectiveness in cleanup decisions.
Status: All 10 Regions, as well as eight other Agency Offices, have designated
representatives to the NRRB. It has been in operation since January 1996. The NRRB
has reviewed 12 proposed decisions at 11 sites, (representing eight Regions) and has
provided substantive or technical advisory recommendations for nine of these decisions.
Of the 12, five have progressed to "final ROD" (i.e., Record of Decision), and one to
Proposed Plan after considering the Board's recommendations. As a result of the
combined six reviews, the Agency expects to realize cost reductions of approximately $8
million. EPA expects additional and substantial cost reductions in the future from among
the other FY96 reviews as project costs are better designed in the "proposed plan" or
December 1996 Page 1
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"ROD." Overall, the Board's preliminary analysis indicates potential reductions in the
range of $15 million to $30 million in total estimated site cleanup costs from reviews
conducted this fiscal year.
Next Steps: As of October 10, 1996, the Board estimates there may be 10 - 20 decisions
reviewed in FY97.
Contact: RichNorris, OERR, (703) 603-9053
Ib. Establish New Remedy Selection Management Flags ("Rules-of-Thumb")
Description: The goal of the rules-of-thumb initiative is to develop remedy selection
rules that will promote cost-effectiveness and flag potentially "controversial" cleanup
decisions for senior management review. EPA developed two fact sheets to implement
this reform. The first fact sheet describes rules-of-thumb, or key principles and
expectations, corresponding to three policy areas in the Superfund remedy selection
process: risk assessment and risk management; treatment of principal threat/containment
of low-level threat wastes; and ground water response actions. EPA strongly believes that
an appropriately consistent application of national policy and guidance is an important
means by which EPA ensures the reasonableness, predictability and cost-effectiveness of
decisions. Gathering these remedy selection rules-of-thumb in one document will aid in
supporting our efforts to promote these important objectives. The second fact sheet
describes a set of proposed management review triggers to promote nationally consistent
remedy selection decision-making.
Status: These proposals were reviewed by EPA Regional offices, other Federal agencies,
and State environmental agencies in August 1996.
Next Steps: EPA will revise both fact sheets based on comments received. The rules-of-
thumb fact sheet will be issued as guidance to EPA Regional offices as soon as comments
have been incorporated. (This is expected by the second quarter of FY97). EPA has
developed a draft summary sheet proposal. This proposal was reviewed by EPA Regional
offices, other Federal agencies, and State environmental agencies in August 1996. The
management review triggers fact sheet will be presented at a national Superfund program
managers' meeting in the second quarter of FY97 as the basis for a discussion on updating
and consolidating management consultation requirements for Superfund remedy selection
decisions (See Round 3 Reform 3b, "Directive on National Consistency in Remedy
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Selection"). The management consultation process will be revised by the end of FY97.
Contacts: Betsy Shaw, OERR, (703) 603-9034
Bruce Means, OERR, (703) 603-8815
Mike Goldstein, OERR, (703) 603-9045
2. UPDATE REMEDY DECISIONS AT SELECT SITES
Description: The Agency has always been able to "update" or change the details of a
cleanup strategy to reflect new information that may not have been available at the time
the original decision was made. Typically, these changes are made to reflect new
information about the characteristics or volumes of contamination present and/or new
expectations regarding the performance of selected technologies under site-specific
conditions. Further, these updates consider the implications of these factors on original
decision criteria such as implementability, short-term effectiveness, and cost or community
acceptance. Updates also may be made to reflect changes in State requirements
(i.e., ARARs), or other information that could not have been considered in the original
decision. Once a Regional manager decides to undertake such changes, there may be
specific requirements for public or other stakeholder involvement depending on the nature
and significance of the anticipated change.
The Update Remedy Reform was undertaken specifically to encourage appropriate
changes in response to advances in remediation science and technology. Reform guidance
(Office of Solid Waste and Emergency Response (OSWER) Directive #: 9200.2-22)
targeted the following three types of changes, but recognized that other types of changes
may be appropriate as well: 1) changes in the remediation technology employed, where a
different technology would result in a more cost-effective cleanup; 2) modification of the
remediation objectives due to physical limitations posed by site conditions or the nature of
the contamination; and, 3) modification of the monitoring program to reduce sampling,
analysis, and reporting requirements, where appropriate. This reform recognized that
recent advances in the area of ground water science and remediation made these types of
decisions good candidates for updates.
It is important to emphasize that this initiative does not signal any changes in Agency
policies regarding site cleanup, including policies regarding remedy selection, treatment of
principal threats, preference for permanence, establishment of cleanup levels, waivers of
cleanup levels, or the degree to which remedies must protect human health and the
environment.
December 1996 Page 3
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Status: EPA issued this reform guidance on September 27, 1996; however, many
Regions anticipated its issuance and completed a number of remedy updates earlier in
FY96. During FY96, remedy updates of all types that achieved future cost reductions
resulted in a total estimated future cost reduction of over $280 million. Of this $280
million, over $250 million resulted from updates of the kind identified in the Reform
guidance. The following are examples of reform related updates:
- At the Western Processing site in Washington, the ground water portion of the original
remedy (valued at approximately $200 million) was modified to reflect new
information gained from remedy implementation. As a result of information collected
during operation of the pump and treat remedy, the Region determined that the
remedy could be significantly enhanced by extending the existing containment barrier
and by automating the pumping system. These changes will greatly reduce the volume
of ground water pumped and also reduce the monitoring and sampling costs. These
changes also are fully consistent with EPA's recent guidance for remediating ground
water. Accordingly, an Explanation of Significant Differences (ESD) was signed to
implement the changes. Estimated costs of the modified remedy will be approximately
$118 million, resulting in overall reductions in remedy costs of $82 million.
At the A. O. Polymer site in New Jersey, the original ground water remedy included
pumping and treating with powdered activated carbon followed by filtration and
carbon polishing to achieve State maximum contaminant levels, at a cost of
approximately $19 million. Through a request to revise the treatment system by a
potentially responsible party (PRP), EPA and New Jersey reviewed the data and
granted the request to update the ground water treatment system to air stripping at a
cost of approximately $10 million. Additional future cost reductions will be realized
through refining the capture zone of the pumping system and by reducing pumping
volumes. An ESD was signed to implement these changes, which EPA estimates will
result in a reduction in remedy costs of over $9 million.
The spirit of this reform is also evidenced in source control decision updates, such as the
following:
At the Norwood PCB site in Massachusetts, the original soil remedy called for on-site
solvent extraction (an innovative technology) at costs estimated at slightly over $13
million in 1989, but which had increased to over $54 million in 1995. Difficulties in
locating solvent extraction facilities due to space constraints and safety issues were
encountered in the pre-design phase. From 1989 to 1995, EPA re-examined the risk-
based site cleanup goals based on revisions to human health and ecological risk
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calculations and clarified the reasonably anticipated future land use for the site. Based
on the new site information obtained from this re-examination (together with data
showing that all treatment technologies evaluated in the original remedy could not be
implemented due to limited space), an alternate approach of consolidation was
developed. The Record of Decision (ROD) amendment was signed updating the soil
remedy to consolidation under an impermeable asphalt cap which could facilitate
future site development at a cost of just over $7 million. EPA estimates this
amendment will result in overall reductions in cost of approximately $47 million.
At the Metamora site in Michigan, the original soil remedy called for excavation and
incineration of co-mingled soils at a cost of approximately $70 million. Additional soil
characterization during remedy implementation showed that materials previously
categorized as "principal threats," for which treatment is strongly preferred, were in
actuality "low level threats," for which containment is generally acceptable. EPA
reviewed and approved a request made by a PRP to reconsider the threat posed by
soil. A ROD amendment was signed which updated the remedy to consolidation of
soils into an on-site landfill at a cost of approximately $42 million. The future cost
reduction of over $28 million resulted from improved understanding of the nature of
the soil contamination and is consistent with policy expectations regarding treatment
of principal threats or containment of low-level threats.
Next Steps: Headquarters will continue to work with the Regions on implementation of
this reform.
Contacts: Bruce Means, OERR, (703) 603-8815
Peter Feldman, OERR, (703) 603-8768
Matt Charsky, OERR, (703) 603-8777
Karen Harrison, OECA (202) 564-5121
3. CLARIFY THE ROLE OF COST AND MAINTAIN CONSISTENCY THROUGHOUT THE
REMEDY DEVELOPMENT PROCESS
3a. Clarify the Role of Cost in the Remedy Selection Process
Description: The objective of this reform is to clarify the current role of cost as
established in existing law, regulation, and policy. The fact sheet developed in support of
this reform does not elevate or establish a new role for cost in the Superfund program, but
rather summarizes the current role of cost in the Superfund program as established by
CERCLA, the National Contingency Plan (NCP), and current guidance. Through the
December 1996 Page 5
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distribution of this fact sheet, EPA hopes to ensure that all stakeholders involved in the
Superfund process fully understand the important role of cost in remedy selection under
existing law and policy and recent initiatives aimed at enhancing the cost-effectiveness of
remedial actions.
Status: EPA issued the fact sheet on September 10, 1996. It is entitled, "The Role of
Cost in the Superfund Remedy Selection Process" (Publication 9200.3-23FS) and is
available through National Technical Information Service.
Next Steps: Implementation of this reform is complete.
Contact: Mike Goldstein, OERR, (703) 603-9045
3b. Directive on National Consistency in Remedy Selection
Description: This directive emphasizes the critical importance of maintaining appropriate
national consistency in the Superfund remedy selection process and requests that program
managers make full use of existing tools and consultation opportunities to promote such
consistency. In particular, this memorandum identifies a range of efforts that support
national consistency in remedy selection and encourages informed discussion of cross-
cutting issues. One such effort includes a program for Headquarters support of Regional
decision-making in key "focus areas" as announced in an Office of Emergency and
Remedial Response (OERR) memorandum dated May 22, 1996. This memorandum
identifies selected issue areas that represent the current focus of OERR's national
Regional coordination effort. These areas include risk management and cost-
effectiveness, decision documentation, ground water policy, lead policy, and presumptive
remedies implementation. Use of existing guidance and appropriate consultation across
Regions and with Headquarters in these and other areas may dramatically improve the
efficiency and consistency of the remedy selection process and, in turn, increase the cost-
effectiveness of program decisions.
The Directive on "National Consistency in Superfund Remedy Selection" (Office of Solid
Waste and Emergency Response (OSWER) Directive 9200.0-21) also recognizes that
there are currently a number of policy documents that promote Regional consultation or
interaction with Headquarters on key issues and announces that an effort to consolidate
and simplify this range of consultation activities will be initiated in Fall 1996.
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Status: EPA issued the Directive entitled, "National Consistency in Superfund Remedy
Selection" (from Elliott P. Laws to Regional Division Directors) on September 25, 1996.
Next Steps: EPA begins initiation of the effort to review and consolidate management
consultation requirements/activities in Fall 1996.
Contact: Bruce Means, OERR, (703) 603-8815
4. CLARIFY INFORMATION REGARDING REMEDY SELECTION DECISIONS
Description: The goal of this initiative is to design a tool for clearly presenting, in a
standardized format, the context, basis, and rationale for site-specific Superfund remedy
selection decisions. This Remedy Selection Summary Sheet format should describe the
following: site contamination; risks posed by the site; the preferred remediation
alternative identified to address the risks; and the costs and other tradeoffs that were
balanced in the identification of this preferred remediation alternative. This summary sheet
format could be used by EPA, other Federal agencies, and State agencies in conjunction
with a Proposed Plan to communicate site-specific remedy selection information to the
public. It could also be used to help organize key remedy selection information for
program managers.
Status: EPA has developed a draft summary sheet proposal. This proposal was reviewed
by EPA Regional offices, other Federal agencies, and State environmental agencies in
August 1996.
Next Steps: Once comments are incorporated, EPA will issue the summary sheet as an
interim product and explore its use as a suggested format for summarizing critical site
information in support of Agency management briefings (e.g., National Remedy Review
Board). Federal Facilities will also be invited to pilot its use in their programs as well.
Contacts: Betsy Shaw, OERR, (703) 603-9034
Bruce Means, OERR, (703) 603-8815
Matt Charsky, OERR, (703) 603-8777
December 1996 Page 7
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5. INSTITUTE NEW ROLE FOR STAKEHOLDERS IN RISK ASSESSMENTS
5a. Community Participation in Designing Risk Assessments
Description: EPA will conduct two projects to empower stakeholders to participate in
the design and implementation of Superfund site risk assessments. In the first project, the
Agency will pilot an effort in which community stakeholders will help design the site-
specific baseline risk assessment at the scoping stage of the remedial investigation.
Working with Regional staff, stakeholders would assist in determining possible future uses
of the site, reasonable exposure pathways, and characteristics of the local population.
Involving local people will allow the site manager to: assess possible exposure pathways,
determine which human behaviors and activities might be expected, and provide a realistic
foundation for conducting risk assessments and selecting cleanup options.
Status: At a number of sites nationwide, the Agency will pilot a process to involve
stakeholders early in the risk assessment process. Headquarters staff is currently working
with the Regions to identify candidate sites. EPA is implementing this reform jointly with
the "Community-Based Remedy Selection" reform (See Round 3; Reform 18). Some
Regions are currently involving stakeholders in the development of the baseline risk
assessment for specific sites, while others are involving interested stakeholders in the site
assessment process. Several Regions have either developed fact sheets or additional
guidance on this reform.
For the Big River NPL site and other historic lead mining sites in Missouri's St. Francois
County, Region 7, in cooperation with Missouri's Department of Health and Department
of Natural Resources, presented risk assessment training to the local community. The
training was attended by the community action group and representatives from a diverse
cross-section of the community. The training will enable the community to participate in
the risk decision-making and lay the ground work for participation later in the response
action decision-making stage.
Next Steps: Pilots will be evaluated using a case-study approach. Findings will then be
used to develop guidance describing the role for community stakeholders in the risk
assessment process.
Contact: Caroline Previ, OERR, (703) 603-8704
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5b. PRP Performance of Risk Assessments
Description: The second project under this reform allows PRPs to conduct Superfund site
risk assessments in appropriate cases as part of the overall remedial
investigation/feasibility study (RI/FS). Allowing PRPs to perform risk assessments makes
the cleanup process more efficient by: decreasing the time needed for conducting the
RI/FS study; improving communication between EPA and PRPs; giving PRPs a greater
role in the decision-making process; and reducing EPA's oversight requirements.
Status: On January 26, 1996, OSWER Directive No. 9340.1-02 announced EPA's new
policy to allow PRPs to conduct the risk assessment at most sites where they are also
performing the RI/FS. The Directive listed six criteria that the Regions are to consider
when deciding whether or not to allow the PRP to perform the risk assessment. The new
policy also removed the previous requirement for the Regions to consult with
Headquarters before authorizing a PRP to conduct the risk assessment. Eight Regions
have indicated that they are identifying sites where PRPs will be conducting the risk
assessments.
Next Steps: Implementation of this reform is complete.
Contact: Stephen Ells, OERR, (703) 603-8822
6. ENSURE REASONABLE AND CONSISTENT RISK ASSESSMENTS
6a. Establish National Criteria on Superfund Risk Assessments
Description: Three initiatives are aimed at improving the Superfund risk assessment
process. This first project will establish national criteria for the Regions to plan, report,
and review Superfund risk assessments. EPA is issuing guidance to assure that risk
assessments: 1) are well-scoped and well designed; 2) use a standardized presentation
format; and 3) are easier to review by Superfund risk assessors. These improvements will
help to promote clarity and consistency in the development of risk assessments and
facilitate decision-making for response actions at Superfund sites. Standard reporting
requirements will help to ensure that assessments are consistent and reasonable.
Status: The Agency has prepared draft documents that: outline technical approaches to
risk assessment; standardize risk assessment data reporting tables; and provide risk
assessment quality assurance checklists. EPA has established a workgroup of
Headquarters and Regional representatives to review and revise these drafts and produce
December 1996 Page 9
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final guidance. The workgroup has so far completed a preliminary review of the outlined
technical approach and the standardized risk assessment data reporting tables. EPA issued
draft standard risk assessment data reporting tables in July 1996. Comments have been
received and are being addressed by EPA.
Next Steps: Based on its review of the proposed technical approach to risk assessments,
the workgroup has decided to develop a generic statement of work (SOW) for risk
assessments. This SOW would be used in contracts, cooperative agreements and
settlements to ensure that risk assessments are well designed and consistent in the type and
quality of risk information that is provided at all sites. The group also will make
modifications to the proposed standardized risk assessment data reporting tables.
Comments received on the draft tables will be reviewed and addressed. Data in these
tables will then be compared with information requirements in the new version of the
primary Superfund database, CERCLIS 3 (i.e., Comprehensive Environmental Response,
Compensation and Liability Information System), to ensure that the risk data needed for
national program management are clearly provided in all risk assessments. Once the risk
assessment tables are finalized, the group will present this information in a consistent
electronic format, allowing the data to be downloaded directly into CERCLIS 3 - thus
making it available for national review and analysis. The workgroup will consider the
most appropriate mechanisms to facilitate review of risk assessments. The workgroup will
issue a generic SOW on risk assessments in September 1997, which will contain the
standardized tables and methodology to be used to facilitate review of risk assessments.
Contact: Jim Konz, OERR, (703) 603-8841
6b. Standardize Risk Assessments
Description: This initiative will improve current national Superfund risk assessment
guidance by selectively updating the 1989 Risk Assessment Guidance for Superfund.
Specific areas where improvements can be made include exposure assessment, human
health toxicity assessment, risk characterization, ecological damage assessment, the
application of risk assessment in risk management decision-making, and risk
communication. Changes that widen stakeholder involvement and incorporate technical
peer review also will improve the technical quality and application of Superfund risk
assessment. Other improvements may include standardizing those "pieces" of the risk
assessment process that vary little from site to site. This initiative also may develop
reasonable default assumptions about expected pathways and routes of human exposure
for different types of land uses or activities.
Page 10 December 1996
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Status: The project leader has been meeting since February with stakeholder groups
soliciting their ideas for improvements, and assessing their interest in participating in the
improvement process. A workgroup consisting of Regional, Headquarters, and Office of
Research and Development (ORD) Superfund risk assessors and managers has been
meeting weekly to biweekly by phone.
The workgroup has drafted short issue reports that are being used to broaden dialog
within the Agency and with outside stakeholders. The group has identified technical and
policy issues in about 14 focus areas. About two-thirds of the Regions have been actively
involved with the workgroup. In June, the workgroup compiled the issue papers into a
single Key Issue Report entitled, "Risk Assessment Guidance for Superfund Reform Work
Group's Draft Key Issue Report." The group sent the Key Issue Report to Superfund
Branch Chiefs (Regions 1-10), the OERR Executive Team, Senior Management Team and
the OSW/OERR Leadership Team for comment and advisory vote on setting priorities
and providing a basis for a Steering Committee to guide the activities of implementing
workgroups.
EPA held a series of Stakeholder dialog meetings for risk assessors, risk managers, local
government officials, Federal and State agency representatives, industry members, and
citizens for an interactive discussion of exposure assessment, toxicity evaluation, risk
characterization and risk communication. The forum gave stakeholders a chance to do the
following: provide their suggestions on how to improve the Risk Assessment Guidance;
learn more about the issues to better understand risks; set priorities based on those risks;
and manage those risks in the most effective and inclusive way possible.
Next Steps: Two dialog groups of stakeholders will be assembled (in San Francisco on
October 30 - November 1, and in Washington on November 6-8, 1996) for discussions of
themes and direction. Information from the stakeholder dialog meetings will be evaluated
and individual issues will be assigned to workgroups to further develop technical
approaches and policy.
Contact: David Bennett, OERR, (703) 603-8759
6c. Utilize Expert Workgroup on Lead
Description: EPA has established an expert workgroup to standardize risk assessment
approaches for lead-contaminated Superfund sites. Lead contamination poses significant
problems because it is common at Superfund sites, can affect neurological development in
children, and is prevalent in economically disadvantaged and minority-populated areas.
December 1996 Page 11
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The Technical Review Workgroup (an Agency workgroup of experts in lead toxicity and
exposure assessment) provides information and advice to Regional risk assessors and site
managers on a wide range of issues pertaining to lead contamination, but generally focuses
on sites with complex or national precedent setting lead issues.
This initiative links and expands existing efforts that support lead risk assessment and
policy. The workgroup is responsible for information collection, analysis of key issues,
providing feedback to the Regions, and networking on lead issues. The goals of this
initiative are: to provide information on the similarities and differences in Regional
approaches to lead risk assessment (and the uses of these assessments); and to create a
forum for site managers and senior managers to discuss alternative risk assessment
approaches.
Status: At this point, EPA issued a call for information in an April 17, 1996
memorandum to senior Regional managers, which included a request for information on
residential lead risk assessments and a draft plan for achieving these goals. EPA received
comments on the draft plan at the end of May. Currently, the analysis of residential lead
risk assessments is in the planning stages.
Next Steps: EPA convened a national workshop on model validation in October 1996.
This initiative relies on Regional support for sending information to Headquarters as well
as the establishment of an effective structure for dialog, among other issues. Contractor
efforts will have standard operating procedures for collection of data that will be reviewed
by the Technical Review Workgroup for lead risk assessments. EPA Regions, ORD, and
the Office of Pesticides, Prevention, and Toxic Substances participate in the Technical
Review Workgroup activities. Regional site managers who formed in the Lead Sites
Workgroup share their expertise with other site managers and the Technical Review
Workgroup.
Contacts: Pat VanLeeuwen, EPA Region 5, (312) 886-4904
Paul White, ORD, (202) 260-2589
Larry Zaragoza, OERR, (703) 603-8867
7. ESTABLISH LEAD REGULATOR FOR FEDERAL FACILITIES
Description: A cleanup may be governed by multiple authorities; e.g.., Superfund, the
Resource Conservation and Recovery Act (RCRA), and/or State laws. Historically, this
has occurred more often at Federal facilities where, until recently, EPA policy requires
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listing sites on the NPL, regardless of RCRA status. Although Federal agencies involved
in a cleanup share the same goals of protecting human health and the environment, their
processes and even cleanup standards may be different. In addition, the overlapping
authorities may be duplicative and an inefficient use of resources. Establishing clearly
defined roles for various regulators at various facilities should help simplify the cleanup
process as well as provide for more efficient staffing.
To meet this goal, EPA is developing guidance that will promote the single regulator
concept, specify roles, and outline the general principles and guidelines that Federal and
State partners should assume in overseeing cleanup responses. The guidance will be
developed by EPA with the advice of an interagency workgroup chaired by EPA that
includes States as co-implementers.
Status: Headquarters has convened a workgroup (underway since Fall 1995) which
includes EPA Regions, Federal agencies and State representatives to develop guidance on
identification and implementation of the single regulator concept. Headquarters has held
13 workgroup meetings since the Fall of 1995. The workgroup has made considerable
progress in analyzing and understanding options.
Some Regions have been able to begin implementing this concept in advance of issuance
of guidance. Regions 4, 8 and 10 have made considerable progress negotiating
agreements with Federal agencies and States that designate a single regulator with lead
oversight responsibilities. Region 4 plans to continue to work with the States to establish
lead regulator responsibility for all Department of Energy (DOE) and Department of
Defense (DOD) sites. Region 8 finalized their Rocky Flats Compliance Agreement this
summer which adopted the lead regulator concept. Region 10 has had in place since
October 1994, an agreement with the State of Washington that divides the sizable Federal
facility workload between EPA and the State. Regions 5 and 6 have been working with
Ohio and Texas respectively to implement comparable agreements.
Next Steps: The workgroup will complete major deliberations and EPA will draft
guidance and circulate guidance more widely to States for their input. EPA should issue
final guidance in mid-FY97.
Contact: Lucy McCrillis, FFRRO, (202) 260-2457
December 1996 Page 13
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8. CONSIDER RESPONSE ACTIONS PRIOR TO NPL LISTING
Description: Current policy establishes a cutoff date for information used to evaluate
sites for the NPL. Thus, under current policy, EPA does not consider the impact of
subsequent response actions on the need for NPL listing. Revising the guidance would
allow EPA to take recent response actions into consideration when determining whether a
site should be placed on the NPL. EPA would determine a site's NPL status by evaluating
risks to human health and the environment after response actions were taken. EPA would
then consult, where appropriate, with the State, Tribe, Agency for Toxic Substances and
Disease Registry, and the potentially affected community before making this decision.
EPA expects that this will have a positive effect by providing incentives for voluntary
cleanup, and encouraging reuse or redevelopment of the property while not compromising
the quality of cleanup actions.
This reform will provide incentives for Federal agencies and private parties to conduct
response actions and better set priorities for listing sites on the NPL. The reform
categorizes sites with certain types of response actions as low priority for the NPL. Once
a site has been classified as low priority for the NPL, then EPA may assign these sites
archive status in CERCLIS, which encourages redevelopment. This reform serves as an
addendum to the "Guidance for Setting Priorities for NPL Candidate Sites" (OSWER
Policy Directive 9203.1-06, October 28, 1992).
Status: NPL Listing/Removal Policy - EPA Regions support an NPL site prioritization
and CERCLIS archival approach for NPL-caliber sites where cleanup criteria have been
met as a result of a response action occurring in the post-site inspection stage. The States
and the Association of State and Territorial Solid Waste Management Officials
(ASTSWMO) issued "full support" and no comments. EPA Headquarters worked with
the Regions and States during FY96 to develop a policy directive to implement this
reform. There is strong EPA Regional and State support for taking into account response
actions occurring in the post-site inspection stage. EPA Headquarters has made no final
decision on this approach and is currently evaluating other options that would address
these response actions and their impact on NPL listing.
In August 1996, OERR conducted another round of review and comment on the reform
and identified some critical issues yet to be resolved. Headquarters OERR staff are
currently meeting to discuss and resolve these issues. Alternatives to this approach have
been discussed and evaluated for any major issues that may arise. Once these alternatives
are further refined for review and comment, the Regional input will be solicited.
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Next Steps: EPA will review and summarize State comments, as well as cross-reference
them against EPA Regional comments for any final issues that need to be addressed. In
July, EPA will brief senior management on this reform. Following senior management
briefing and comment, EPA should finalize the reform in FY97. The Agency will amend
the October 1992 NPL regulation by FY97.
Contact: Tim Gill, OERR, (703) 603-8856
9. DELETE CLEAN PARCELS FROM THE NPL
Description: EPA published the partial deletions rule (which allows EPA to delete
releases at portions of NPL sites, provided that deletion criteria are met) in the Federal
Register on November 1, 1995. Previously, EPA's policy had been to delete releases only
after evaluation of the entire site. However, deletion of entire sites does not communicate
the successful cleanup of portions of those sites. Total site cleanup may take many years,
while portions of the site may have been cleaned up and become available for productive
use before cleaning has been completed at other portions of the site. Some potential
investors or developers may be reluctant to undertake economic activity at a cleaned up
portion of real property that is part of a site listed on the NPL. Therefore, EPA will delete
portions of sites, as appropriate, and will consider petitions to do so.
Status: EPA signed and sent the partial deletion guidance to the Regions on April 30,
1996 (OERR Directive 9320.2-11). This guidance is aimed at mapping and tracking
partial deletions at NPL sites in order to better portray the Agency's successes. It does
not outline partial deletion procedures since they are the same as deletion procedures for
total site deletion.
Region 6 published the first partial deletion Notice of Intent to Delete (NOID) in the
Federal Register on April 11, 1996 (61 FR 16068). Regions 4 and 10 subsequently have
published three more NOIDs. Region 10 published the first partial deletion notice on
October, 29 1996 (61 FR 55751). EPA announced the second partial deletion in Region
10 on November 7, 1996. Region 10 expects that one more site will be partially deleted
by December 1996. Regions 3, 4, 5, and 8 will continue to evaluate whether partial
deletion is warranted. Region 6 will continue with the current process of deleting sites
from the NPL. Region 6 expects to finalize four deletions in
FY96, propose two additional partial deletions, and propose full deletions at a number of
sites. Region 2 is waiting on the Risk Assessment Completion Report.
December 1996 Page 15
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Next Steps: Many Regions have indicated that they have sites where they would like to
delete portions. Headquarters has received several draft NOIDs for review. The Regions
should identify which sites they would like to partially delete and begin the process by
submitting a NOID and Partial Deletion Data Collection Form to Headquarters.
Contact: Terry Keidan, OERR, (703) 603-8852
10. CONDUCT NATIONAL RISK-BASED PRIORITY SETTING
lOa. Promote Risk-Based Priority Setting at Federal Facility Sites
Description: Headquarters is developing draft guidance for the Regions which will
address the role of risk and other factors (e.g., cost, community concerns, environmental
justice, and cultural considerations) in setting priorities at Federal facility sites. Guidance
also will address DOD and DOE approaches to evaluating risks at sites, and the
appropriate role of stakeholders in the process of setting priorities.
Status: Headquarters has obtained internal comments and has received comments from
Federal agencies and States on the draft priority setting guidance. Regions have begun to
implement the concept of risk-based priority setting at Federal facility sites. Regions 3, 9,
and 10 have had considerable success setting risk-based priorities at Navy Superfund sites
within their Regions. Consensus was reached among key players about which sites within
a Region warranted near term attention and funding. Projects in Regions 9 and 10 were
particularly noteworthy because they involved two Regions at the same time.
Next Steps: EPA will issue final guidance in the second quarter of FY97.
Contact: Lucy McCrillis, FFRRO, (202) 260-2457
lOb. Promote Risk-Based Priority for NPL Sites
Description: EPA established a National Risk-Based Priority Panel in August 1995. The
Panel is comprised of program experts representing all 10 Regions and Headquarters.
With the exception of emergencies and the most critical removal actions, cleanup projects
are funded in priority order based on Panel evaluations.
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Status: Projects are evaluated based on five criteria:
*• Risks to humans;
> Ecological risks;
*• Stability of contaminants;
> Contaminant characteristics; and
*• Economic, social, and program management considerations.
During FY96, 42 projects totaling over $276 million were funded in accordance with
Panel recommendations. Over 100 projects were evaluated by the Panel. While some of
these projects will carry over as FY97 needs, some will experience changing conditions
requiring critical removal actions or successfully achieve enforcement agreements for
action. By early FY97, the Panel had ranked projects approaching $1 billion in cleanup
costs. The Panel met in October 1996.
Next Steps: Since the approval of the operating plan in June 1996, new projects ready for
funding in FY96 are subject to panel evaluation. Regional managers met in June 1996 to
discuss refinements to the process for FY97. The Panel will reconvene in early spring
1997.
Contact: John J. Smith, OERR, (703) 603-8802
II. ENFORCEMENT
11. ORPHAN SHARE COMPENSATION
Description: Under CERCLA's joint and several liability system, viable PRPs are
potentially liable for the shares that may be attributable to insolvent or defunct parties who
cannot contribute to the cost of cleanup (i.e., the "orphan share"). In an effort to enhance
fairness and encourage PRPs to enter into settlement agreements to perform cleanups,
EPA announced in October 1995 that it would compensate performing parties for a
limited portion of orphan shares in future cleanup settlements. The Agency stated that this
compensation might be accomplished through forgiveness of past costs and projected
oversight costs, subject to funding availability for the program. EPA has developed
guidance to assist the Regions in applying this reform at particular sites.
Status: On June 3, 1996, EPA issued its "Interim Guidance on Orphan Share
Compensation for Settlors of Remedial Design/Remedial Action and Non-Time-Critical
Removals" which provides for orphan share compensation where: 1) EPA initiates
negotiations for remedial design/remedial action (RD/RA) or a non-time-critical (NTC)
December 1996 Page 17
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removal at an NPL site and a PRP or group of PRPs agree to conduct the RD/RA or NTC
removal under consent; and 2) an "orphan share" exists at the site. The term "orphan
share" refers to that share of responsibility which is specifically attributable to parties EPA
has determined are 1) identifiable and potentially liable; 2) insolvent or defunct; and 3)
unaffiliated with any party potentially liable for response costs at the site.
Regions may provide compensation as long as it does not exceed: 1) the orphan share; 2)
the sum of all unreimbursed past costs and projected future oversight costs; or 3) 25% of
the projected ROD remedy or NTC removal costs. Given the lapse in Superfund's taxing
authority, the implementation of the reform strikes a balance between preserving the Trust
Fund and providing meaningful implementation of the reform because it forgives past
costs and anticipated future costs rather than require new additional budget authority.
After the announcement of the reform in October 1995, EPA established a team of
Headquarters staff to assist the Regions in implementing the reform. The team, in
coordination with the Department of Justice (DOJ), worked closely with Regional staff to
resolve issues on a site-by-site basis and to ensure consistent results. During FY96, the
Agency offered to compromise over $57 million to parties (providing they agreed to
conduct the cleanup) in recognition of the orphan share at 24 Superfund sites across the
United States. This achievement honors the commitment made by Administrator Carol
Browner to offer at least $50 million as part of settlement compromises at such sites in
FY96. The reform also has reduced litigation and transaction costs by diminishing the
arguments over who should bear the burden of the orphan shares.
For example, EPA compromised approximately $1.5 million in recognition of the orphan
share in a settlement of past cost claims and for cleanup work at the United Heckathorn
site in Richmond, California. The 15 settling PRPs did not have to reimburse the
Superfund for this amount because EPA determined that the long-term operators of this
pesticide formulation plant were defunct and EPA would cover as much of this share as its
current policy permitted. The settlement resolved EPA's claims against the settling parties
and ended long-standing and expensive private litigation. Additionally, the cleanup work
to be done under the settlement will permit the City of Richmond to conduct its planned
port deepening project. This is viewed by the City as a cornerstone of its economic
redevelopment program.
Next Steps: The orphan share reform is a fundamental and permanent change in EPA's
enforcement process. In FY97, EPA will continue to bear a portion of the orphan share
by compromising costs at sites where parties agree to perform cleanups under the Agency
guidance issued in June 1996 within the bounds of existing appropriations and past and
anticipated future oversight costs available for compromise. In addition, EPA will be
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considering possible changes to the guidance, including applicability to early de minimis
settlors, within the bounds of these parameters.
Contacts: Susan Boushell, OSRE, (202) 564-5107
Deniz Ergener, OSRE, (202) 564-4233
12. SITE SPECIFIC SPECIAL ACCOUNTS
Description: In October 1995, EPA announced its intention to encourage greater use of
Special Accounts for settlement funds to be used for future response actions at Superfund
sites and to ensure that interest earned by Special Accounts can be credited to these
accounts and be available for future response actions at the sites in question.
Status: In March 1996, EPA issued a memorandum to its Regional Offices, encouraging
them to use Special Accounts for settlement funds and advising them on the creation and
use of these accounts. In June 1996, EPA reached agreement with the Office of
Management and Budget (OMB) and the Department of the Treasury that interest earned
by Special Accounts can be credited to these accounts and used by the Agency to carry
out the settlement agreements. This means that EPA can retain and apply interest as well
as settlement funds to clean up specific sites. In October 1996, OMB approved EPA's
methodology for calculating Special Account interest. In late October 1996, EPA sent a
memorandum to the Regions outlining the agreement with OMB, providing principal and
interest balances in Special Accounts and providing directions on how to request these
funds.
In FY96, the Regions established 23 Special Accounts, for a total of $78 million. Overall,
as of September 30, 1996, EPA has set up a total of 59 Special Accounts. The total
balance of funds available in Special Accounts is $261 million, representing $226 million in
principal and $35 million in interest (interest through August 31, 1996).
The following examples illustrate the success of this reform in making site-specific Special
Accounts available for response actions at Superfund sites:
> At the Love Canal Superfund Site in New York (Region 2), $5 million in Special
Account funds will be used for the remaining future work at the site; i.e.,
revitalization of the site and completion of a health register.
*• At Oronogo-Duenweg Superfund Site in Missouri (Region 7), EPA entered into a
$1 million settlement with an inactive PRP with limited resources. The use of a
Special Account at this site allowed the Agency to settle with the PRP before its
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assets dwindled further and preserve the funds for future response actions at the
site.
*• At the Sharon Steel and Midvale Slag Superfund Sites in Utah (Region 8), most
of the $65 million in Special Account funds from a large settlement for these two
contiguous sites has been applied to cleanup at the sites. In addition, the $11
million in interest recently credited to the account will be applied to future cleanup
activities at the sites.
> At the North Hollywood Operable Unit of the San Fernando Valley-North
Hollywood Superfund Site in California (Region 9), five PRPs contributed $1.8
million to a Special Account which EPA plans to use to pay the operating costs of
the ground water treatment system at the site.
> At the Non-Populated Areas Operable Unit of the Bunker Hill Superfund Site in
Idaho (Region 10), one PRP went bankrupt and EPA was able to recover $8.75
million. Use of Special Account funds allowed the Region to expedite Fund-lead
cleanup.
Next Steps: EPA will be providing general program and financial guidance to the
Regions in the near future. The Agency will continue to monitor the success of this
reform.
Contact: Filomena Chau, OSRE, (202) 564-4224
13. EQUITABLE ISSUANCE OF UNILATERAL ADMINISTRATIVE ORDERS (UAOs)
Description: Concerns have been expressed that EPA has issued unilateral administrative
orders (UAOs) under section 106 authority to only a subset of the parties which have been
identified for a particular site. In order to assure fair treatment of responsible parties, EPA
is committed to ensuring that UAOs are issued to all appropriate parties following
consideration of the adequacy of evidence of the party's liability, their financial viability,
and their contribution to the site. Accordingly, EPA will identify (for internal management
review purposes only), parties excluded from any order proposed to be issued and the
basis for their exclusion. Regional staff will ensure that the Regional decision-maker
receives sufficient information regarding who will and who will not receive the orders in
the package sent to him or her for approval. Specifically, Regional staff will identify the
total number of parties EPA has discovered at a site. Where Regional staff recommend
that an order not include certain parties, they will include an explanation of the basis for
such exclusion in the package.
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Status: On August 2, 1996, EPA issued a memorandum entitled, "Documentation of
Reason(s) for Not Issuing CERCLA 106 UAOs to all Identified PRPs," reaffirming EPA
policy to issue UAOs to the largest manageable number of PRPs after appropriate factors.
The memorandum also establishes the formal procedures requiring Regional staff to
document their reason(s) for proposing that certain PRPs be excluded from UAOs and
procedures for situations where Regional staff propose not to issue UAOs to late-
identified PRPs.
An example of implementation of this reform can be found at the Green River Disposal
Site in Maceo, Kentucky. Several years ago, Region 4 issued a UAO to four PRPs to
conduct an RI/FS and some removal activity at the site. This year, the Region issued a
UAO for RD/RA not only to these four PRPs, but to six additional PRPs as well.
Moreover, the Region considered issuing the UAO to several other parties. It ultimately
decided not to include these other parties and, consistent with EPA's new policy,
documented the reasons for non-issuance.
Next Steps: The Agency is establishing a process for ensuring that the Regions prepare
the necessary documentation. During FY97, EPA will extend the documentation
requirement to UAOs for removals and RI/FSs and will evaluate Regional implementation
of the policy and the adequacy of associated documentation.
Contact: Mike Northridge, OSRE, (202) 564-4263
14. REVISED DE MICROMIS GUIDANCE
Description: For very small volume waste contributors at a Superfund site ("de
micromis" contributors), the cost of legal and other representation services may actually
exceed the party's proportional share of response costs. Based on the extremely small
nature of these parties' contributions, EPA issued a policy in 1993 stating that the Agency
would not pursue these parties (See "Guidance on CERCLA Settlements With De
Micromis Waste Contributors" (Office of Solid Waste and Emergency Response
(OSWER) Directive #: 9834.17) (White/Diamond, July 30, 1993)). Where private parties
pursued these very small contributors, EPA planned to enter into settlements providing
contribution protection. This reform is intended to further discourage third party
contribution litigation against these contributors and, where necessary, improve EPA's
ability to resolve their liability concerns quickly and fairly. Through guidance, EPA is
doubling the level previously identified for de micromis protection. Furthermore, if a de
micromis party is threatened with litigation by private parties, EPA will settle with that
party for $0 in a settlement agreement that protects such parties from further litigation.
December 1996 Page 21
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Status: EPA has issued new guidance and models which reaffirm the Agency's policy not
to pursue de micromis contributors and, when the threat of third-party litigation
forces the Agency to conduct settlement negotiations with these parties, streamline and
simplify the settlement process :
"Revised Guidance on CERCLA Settlements with De Micromis Waste Contributors"
(June 3, 1996) recommends cutoffs for eligibility at: 1) 0.002% (of total volume) or
110 gallons/200 pounds of materials containing hazardous substances, whichever is
greater; or 2) 0.2% of total volume, where a contributor sent only municipal solid
waste (MSW). EPA will settle with these parties for $0 dollars. The guidance
instructs the Regions to only offer a de micromis settlement where potentially
qualifying parties: 1) have been sued by other PRPs at the site; 2) face the concrete
threat of litigation from other PRPs at the site; or 3) have approached EPA seeking a
settlement and the Region has determined that such parties have a reasonable
expectation of facing contribution litigation.
The "Informational Brochure for De Micromis Parties" (June 3, 1996) provides
introductory information for potential settlors about the Superfund program and de
micromis settlements.
The "Model De Micromis Questionnaire" and "Sample Cover Letter for De Micromis
Questionnaire" (June 3, 1996) is to be filled out by potential settlors, and contains a
series of questions about the potential settlor's waste and its involvement with the site
to assist EPA in determining eligibility for settlement. The sample letter introduces the
recipient to the Superfund program, the site, and the concept of de micromis
settlements, and invites the recipient to fill out the questionnaire.
The "Model Section 122(g)(4) De Micromis Administrative Order on Consent" (June
3, 1996) provides model settlement language for administrative resolution of a de
micromis party's liability.
- The "Model Section 122(g)(4) De Micromis Consent Decree" (June 3, 1996) provides
model settlement language for the judicial resolution of a de micromis party's liability.
The "Sample Cover Letter for De Micromis Settlement" (June 3, 1996) will
accompany the de micromis settlement when it is sent out for signature by the settling
party.
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- The "Model CERCLA Section 122(i) De Micromis Federal Register Notice" (June 3,
1996) is for use by EPA staff when providing the notice and comment required by
section 122(i) of CERCLA.
During FY96, EPA witnessed many successes in its efforts to decrease pursuit of de
micromis parties. Consistent with EPA's 1995 new model consent decree for RDs/RAs,
an increasing number of RD/RA consent decrees entered in FY 96 included an agreement
by the private parties to waive their contribution rights against de micromis parties,
including settlements at the Red Oak Landfill Site in Iowa and the Shepards Farm Site in
North Carolina.
Where de micromis parties were pursued by private parties, EPA looked to get the
smallest volume contributors out of Superfund litigation at the earliest possible
opportunity. For example, at the Keystone Sanitation Landfill in Pennsylvania, EPA has
entered into settlements with approximately 167 third and fourth party defendants who
certified their de micromis status. At the Pollution Abatement Services Site in New York,
EPA entered into an administrative order on consent providing protection to a local
university.
Next Steps: EPA will continue to identify those sites where implementation of this
reform is appropriate.
Contacts: Susan Boushell, OSRE, (202) 564-5107
Janice Linett, OSRE, (202) 564-5131
15. ADOPTING PRIVATE PARTY ALLOCATIONS
Description: In order to reduce transaction costs, EPA has committed to adopt private
party allocations (including those that identify an orphan share) as the basis for settlement,
where such allocations are approved by EPA. EPA also has agreed to compensate a
portion of the orphan share, subject to the adequacy of funding.
Status: EPA established a national workgroup to determine the parameters and identify
opportunities for implementation of this reform. The Agency has adopted private party
allocations at several sites, including the Doepke Holliday Site in Kansas. At this site,
EPA accepted the PRPs' allocation scheme providing for settlement with a group of 66
parties, including two Federal agencies. As a result of this settlement, estimated at $11
December 1996 Page 23
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million, the PRPs will perform the cleanup of the site and reimburse 100% of EPA
response costs. EPA successfully avoided costly and time-consuming allocation disputes
and third-party contribution litigation.
Next Steps: The workgroup determined that current Superfund policies are adequate for
providing direction to implement the reform and, as a result, no new guidance is planned.
Contacts: Deniz Ergener, OSRE, (202) 564-4233
Susan Boushell, OSRE, (202) 564-5107
16. REDUCED OVERSIGHT FOR CAPABLE AND COOPERATIVE PRPs
Description: As the Superfund program has matured, parties have developed a
considerable body of experience in conducting response activities at sites. Some not only
have used this experience to perform high quality work, but have acted cooperatively with
EPA throughout the cleanup and enforcement processes. In recognition of this
development, and to promote further cooperation, EPA has reduced oversight at some
sites already and will identify additional opportunities to discuss and reduce oversight
plans with parties. Reduction of such oversight results in decreased transaction costs for
EPA and cooperating parties, and should increase the incentives for settlement.
Status: A six-page Directive, "Reducing Federal Oversight at Superfund Sites with
Cooperative and Capable Parties," (OSWER #9200.4-15) (July 31, 1996) presents
factors for the Regions to consider when determining if a PRP is cooperative and capable,
and thus eligible for reduced oversight. The Directive encourages Regions to discuss
oversight with stakeholders, acknowledge those parties that have already received reduced
oversight, and discuss future oversight plans. The Directive also provides some examples
of how oversight can be reduced, but recognizes some situations where additional
reductions in oversight may not be warranted (e.g., highly complex sites or cleanups with
substantial community involvement).
Regions have identified approximately 100 sites where reductions in oversight of ongoing
work for cooperative and capable PRPs have occurred in the past or will occur in the
future, significantly reducing costs at some of these sites. For example, at the LaVaca Bay
site, Region 6 stopped using an oversight contractor for technical review since this activity
was already being provided by a Federal/State Technical Coordination Team.
Furthermore, Region 6 plans to reduce field work oversight at the site by minimizing split
samples and by performing lab audits and overseeing field sampling activities only when
needed.
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Next Steps: Regions will notify cooperative parties that they have already received
reduced oversight or will receive reduced oversight. Regions will be encouraged to
provide PRPs with an up-front estimate of contractor costs for oversight.
Contacts: Alan Youkeles, OERR, (703) 603-8784
Steve Rollin, OSRE, (202) 564-5142
III. PUBLIC INVOLVEMENT
17. PILOT REMEDY SELECTION BY SELECTED STATES AND TRIBES
Description: The goal of this reform is to provide States with an increased role in remedy
selection at NPL sites whenever possible. EPA and selected States would enter into
agreements through which those States would conduct the remedy selection process,
consistent with applicable law and regulations, at certain NPL sites. Using remedy
selection pilots, participating States will supervise the remedy selection process with
minimal EPA oversight or involvement. This would give the States significantly more
control than usual over NPL site cleanups.
Status: Information has been shared regarding the Regions' current efforts in shifting
remedy selection to the States. Four Regions have begun to give States the authority to
recommend the preferred alternative remedies. However, the NCP still requires EPA to
concur on the final ROD. Regions 5, 6, and 10 are evaluating changes that will occur
when States assume a more active role in remedy selection and are looking to further
expand the role of States in selecting remedies. During FY96, Region 5 completed one
State remedy selection pilot. Region 6 has tentatively identified a few sites for State
remedy selection. Region 9 issued two memoranda concerning their experiences with
pilot State selection of remedies and is considering doing a new State remedy selection
pilot. Region 10 is examining various Regional pilot programs to identify relevant
guidance/policy criteria. The national workgroup has developed criteria and a process to
select new pilots and monitor an assess the results.
Next Steps: By Winter 1997, EPA will develop "lessons learned" for past and ongoing
pilots and identify new pilots.
Contact: Sharon Frey, OERR, (703) 603-8817
December 1996 Page 25
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18. PILOT COMMUNITY-BASED REMEDY SELECTION PROCESS
Description: Through this initiative, EPA will explore the use of more "consensus-based"
approaches that involve community stakeholders in the Superfund remedy selection
process. This effort is intended to empower local citizens and other stakeholders to
achieve mutually acceptable remedies that meet statutory and regulatory requirements and
make common sense. The goals of this reform are to catalog Regional experiences and
develop guidance highlighting options for using consensus-based approaches during
remedy selection.
Status: As a result of cooperative work between EPA, DOE, the Tennessee Department
of Environment and Conservation, and the significant involvement of the affected
community at the Lower East Fork Poplar Creek site in Oakridge, Tennessee, $160
million in cleanup costs were saved. Community participation in the development of
cleanup alternatives and remedy selection resulted in this future cost reduction. This
project demonstrates the value of community participation in the remedy decision-making
process.
Regions have identified other sites where they are using or plan to use a consensus-based
approach to select a remedy for a site. One Region is implementing a workshop training
program that identifies, communities where the Public Awareness Workshop training
would be beneficial and familiarizes sites in the Region with the concept of Community
Advisory Groups (CAGs).
Next Steps: The Agency plans to analyze the Superfund program's experiences to date.
Using a case study approach, a Headquarters/Regional workgroup will look at sites to
identify both positive and negative factors that affect community understanding of cleanup
options and participation in cleanup decision-making. The workgroup will evaluate these
site-specific experiences after they are gathered, and develop guidance by December 1996.
This effort will begin the process of identifying tools and techniques that can be used by
the Superfund program to successfully involve local citizens and other stakeholders in the
remedy selection process.
Contact: Caroline Previ, OERR, (703) 603-8704
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19. ESTABLISH SUPERFUND OMBUDSMAN IN EVERY REGION
Description: This initiative was undertaken by a joint Headquarters/Regional workgroup.
The goal of the initiative was to place an Ombudsman in each Region to serve as a point
of contact for the public and help resolve stakeholder concerns.
Status: Headquarters and the Regions were equal partners in the development of the
mission statement, position description, process description, and implementation and
evaluation plans. The Regions have adapted the generic products to meet their needs,
thus allowing for Regional variation but retaining national consistency. On June 4, 1996,
EPA Administrator Carol Browner announced that all 10 Regions had nominated an
Ombudsman by the prescribed date of March 31, 1996.
The workgroup attended the first EPA Ombudsman Conference and Training Seminar.
The purpose of the conference and training was to train all Regional Ombudsmen in
interest-based negotiation, facilitation, and other skills the Ombudsmen need to do their
jobs. The Ombudsmen began accepting cases in June of 1996.
There have been a number of cases brought to the Superfund Regional Ombudsmen even
in the short time they have been active. Of these, two became criminal cases. Five of the
Regions have installed a toll-free number to accommodate calls to the Superfund Regional
Ombudsman. The other Regions are investigating the feasibility of toll-free numbers.
Collectively, since June 1996, the Superfund Regional Ombudsmen answered a total of
159 calls in FY96. Of these calls, the Ombudsmen referred 70 calls to another EPA office
or to another agency and no further action was required. Of the remaining calls handled
by the Ombudsmen, 87% were appropriately handled and resolved to the mutual
satisfaction of the parties involved, while 13% of the calls are still in the process of being
handled by the Ombudsmen.
Next Steps: The workgroup will continue to provide assistance to the Regional
Ombudsmen as needed and will also perform periodic evaluations. Additionally, all
Regions plan to better define the role and responsibility of the position as the position
evolves. Regions are in the process of identifying lessons learned from the period of June
through September 1996. The Superfund Regional Ombudsmen will have another training
and conference in early 1997 to further refine their negotiation, facilitation, and conflict
resolution skills.
December 1996 Page 27
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Contacts: Kim L. Fletcher, OERR, (703) 603-8922
Jack Winder, OSRE, (202) 564-4292
Ombudsmen contacts:
•> Region 1 - John Smaldone, (800) 762-5727
> Region 2 - George Zachos, (888) 236-7626
•> Region 3 - John Armstead, (800) 438-2474
•• Region 4 - Ron Wilson, (800) 321-6621
•> Region 5 - Doug Ballotti, (800)321-6621
> Region 6 - Eddie Sierra, (800) 533-3508
- Region 7 - Craig Smith, (800)223-0425
•• Region 8 - Rob Henneke, (800) 227-8917, Ext. 6734
> Region 9 - Don White, (415) 744-1022
- Region 10 - Michelle Pirzadeh, (206) 553-1775
20. IMPROVE COMMUNICATION WITH SUPERFUND STAKEHOLDERS
Description: Through this initiative, EPA is using electronic tools, such as the Internet,
multi-media computers, and other electronic means, to increase communication among all
Superfund stakeholders and improve access to Superfund information.
Status: EPA activated the Headquarters Superfund Homepages
(www.epa.gov/superfund and es.inel.gov/oeca/osre.html) on the Internet in Spring 1996,
as a cooperative effort between OSWER and the Office of Site Remediation Enforcement
(OSRE).
All of the Regional offices have developed homepages which will include information on
Regional Superfund programs, such as Superfund site lists, site-specific information, and
links to State Superfund activities. Region 3 is planning to expand site-specific
information on the web site and allow for discussion on site initiatives among multiple
parties across the web. Region 5 also will place site narratives on the web and is
coordinating the Regional Superfund homepage activities with national homepage
activities to avoid duplication. They will canvas the Regional Superfund programs to
determine what information is available and useful, and develop mechanisms for discourse.
Regions 6 and 10 have started to make information available through bulletin boards.
Region 7 has included site summaries and reference to the Technical Outreach Services to
Communities (TOSC) program supplements the Technical Assistance Grant (TAG)
program. Region 8 intends to provide a main index for Geographic Information System
(GIS) maps covering all sites. Region 9 has included fact sheets on Superfund subjects.
Region 10 offers downloading of RODs and ground water data.
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Next Steps: A workgroup involving Headquarters and the Regions will develop
procedures for consistency of electronic information and identify sites and stakeholder
groups to use as pilots for sharing electronic information.
Contacts: Carolyn Offutt, OERR, (703) 603-8797
John Wheeler, OSRE, (202) 564-4284
December 1996 Page 29
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Page 30 December 1996
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SUPERFUND REFORMS ROUND TWO
I. ENFORCEMENT
1. PRP SEARCH PILOTS
Description: The primary goal of the PRP search pilots is to determine whether the time
line proposed in H.R. 4916, a 1994 bill known as "the Superfund Reform Act of 1994"
(SRA), is achievable through completion of early PRP searches. In addition, EPA is
evaluating new ideas on information-sharing with already identified PRPs and new
techniques for identifying additional parties earlier in the process.
Status: In 1995, EPA convened a national workgroup of PRP search specialists and
conducted a national conference on PRP search procedures to share information and
brainstorm innovative ways to obtain and document evidence earlier in the process,
including greater cooperation and information exchange with PRPs. Based on the results
of the national conference and the insights gained from the Regional pilots, EPA has
begun to expand and update existing PRP search guidance and to reorient the PRP search
process to facilitate expedited settlements and allocation of responsibility. To assist with
the implementation of this reform initiative, EPA provided training on early PRP search
procedures for Regional staff, State officials, and contractors following the national
conference.
Additionally, EPA developed resource packages for Regional pilot participants. The
packages included the following materials:
> New sample 104(e) information request letters (e.g., separate letters for small
businesses, individuals, and large entities);
> A sample newspaper advertisement seeking additional information regarding
PRPs;
> The Agency's 1988 and 1991 guidance and sample language on the use and
issuance of administrative subpoenas;
> Tips on establishing a public repository for PRP search information;
*• The use of Rule 27 of the Federal Rules of Civil Procedure to take depositions
before a complaint is filed; and
*• Guidance on how to use statements taken by civil investigators.
EPA identified 15 candidate sites where PRP searches had just begun or were about to be
initiated in Spring 1995. To test the relevant provisions contained in the SRA, EPA set up
December 1996 Page 31
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each pilot search to conform as nearly as possible to a time line that will lead to
notification of potential de minimis parties within 12 months after the search starts and
notification of all other parties within 18 months. Searches are ongoing at six of the 15
sites. When the majority of pilot searches have been underway for 18 months, EPA will
evaluate whether or not these time lines are achievable. Additionally, each pilot is testing
one or more of the streamlining techniques identified during the national conference.
Piloted techniques include: exploring the use of newspaper advertising to solicit
information about PRPs from the public; conducting early interviews of parties to obtain
information and minimize the need for multiple rounds of requests; early release of PRP
information to the public; and gathering information from PRPs regarding the activities of
other parties.
Next Steps: In FY96, the Agency began to revise the existing PRP Search Manual to
send a clear message that the goal of the PRP search is broader than identification of a few
parties to conduct the cleanup. The manual will also reflect the lessons learned from: the
PRP search conference; reform pilots (PRP search, expedited settlements, and
allocations); and orphan share reform. The draft revised PRP Search Manual also
includes: suggested roles for PRPs who desire to work with EPA during the PRP search;
a compilation of Regional PRP search "tools" for more efficient information-gathering and
information-sharing; and an incorporation of relevant Superfund Reforms and other
Superfund Enforcement policy and guidance. The draft Manual is currently undergoing
Regional and Department of Justice review and comment. EPA expects to finalize the
revised PRP Search Manual in 1997. EPA also has developed extensive enhancements in
its CERCLIS 3 database currently being piloted by Regions 2 and 5 which should enhance
Regional information-sharing.
Other actions EPA tentatively plans include Regional training/information-sharing on
topics such as ability-to-pay and orphan share determinations as they relate to PRP
searches. A national conference of EPA, State and external stakeholders also may be held
in 1997 to facilitate information sharing on PRP searches which support Superfund
Reforms.
Contacts: Lisa Warner-Blum, OSRE, (202) 564-4283
David Kluesner, OSRE, (202) 564-6062
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2. EXPEDITED SETTLEMENTS
Description: EPA recognizes that early settlements reduce transaction costs for all
parties. Therefore, in 1995, EPA began piloting expedited settlement procedures at
several sites where the PRP search is substantially complete. At these sites, EPA is
settling earlier (i.e., pre-ROD) with de minimis contributors and with certain PRPs who
have demonstrated a limited ability to pay response costs. EPA is developing early
response cost estimates, a premium guidance to facilitate early de minimis settlements; a
policy for making determinations about a PRP's ability to pay; model information request
clauses; model settlement language; and other tools to expedite such settlements. As the
next step, the PRPs at these pilot sites will be given the opportunity to "nominate" other
parties who they have a reason to believe also are responsible parties at the site.
Status: EPA has developed different tools to assist with the settlement ofde minimis and
ability to pay parties under this reform. These tools include a guidance document, two
models, and a fact sheet, which are described below:
- "Overview of Ability-to-Pay Guidance and Models," May 1995 - This fact sheet
identifies and describes documents that are relevant to Superfund ability-to-pay
analyses. It summarizes both: 1) general policy documents that require or provide for
consideration of the ability-to-pay of Superfund parties; and 2) documents that
describe methods to determine ability-to-pay settlement amounts (e.g., the ABEL
computer model).
"Standardizing the De Minimis Premium," July 7, 1995 - This guidance document
establishes presumptive premium figures, describes the most likely bases for deviating
from such figures, and recommends a method for effectively communicating the
premium determination process to the de minimis settlors and other interested parties
at a site.
- Revised Model CERCLA Section 122(g)(4) De Minimis Contributor Consent
Decree, September 29, 1995 - The model, which supersedes the October 19, 1987
interim model, provides guidance for EPA and DOJ staff when negotiating de minimis
contributor judicial consent decrees.
- Revised Model CERCLA Section 122(d)(4) De Minimis Contributor
Administrative Order on Consent, September 29, 1995 - The model, which
supersedes the October 19, 1987 interim model, provides guidance for EPA and DOJ
staff when negotiating de minimis contributor administrative orders on consent.
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To enhance the Regions' capacity to review claims of ability-to-pay problems, the PRP
Search national conference in February 1995 included sessions addressing methods of
making ability-to-pay determinations. Additional resources were made available to the
Regions to increase their financial analysis capacity.
In FY95, EPA successfully completed four expedited settlements, resulting in the release
of 236 de minimis parties from the Superfund process prior to the ROD being signed. The
four sites were Solvents Recovery Service in Connecticut, Tri-Cities Barrel in New York,
Arcanum Iron & Metal in Ohio, and Hanson Container in Colorado. At two of the four
sites, EPA settled early with four de minimis parties based upon their inability or limited
ability to pay their proposed share of the cleanup costs. Additionally, all PRPs associated
with the pilot sites were provided the opportunity to identify other parties to the process.
EPA identified additional parties in a variety of ways, including the PRP Steering
Committees and/or general notice letters and meetings with PRPs to inform them about
the nominations opportunity. EPA developed a short sheet providing guidelines for
nominating additional parties to the process which was used to implement this portion of
the reform.
In FY96, EPA negotiated several pre-ROD de minimis settlements that will ultimately
result in protection of 264 small volume waste contributors when the public comment
periods end. A settlement at the Tulalip Landfill in Marysville, Washington finalized this
fiscal year helped 187 parties resolve their Superfund liability. In addition, EPA's efforts
to streamline evaluations of claims from PRPs with limited ability to pay their CERCLA
liabilities led to a number of ability-to-pay settlements at Superfund sites. For example,
this streamlined process resulted in EPA settling with four PRPs at the XXKEM Company
Site in Toledo, Ohio. Without such a process, EPA may not have been able to settle with
these parties who claimed a limited ability-to-pay in the short time provided by the large
de minimis settlement.
Next Steps: In FY97, the Agency will continue to emphasize the importance of removing
small waste contributors from the Superfund enforcement process with minimal
transaction costs. Several expedited settlement pilots are ongoing.
EPA also intends to issue four policy documents regarding ability-to-pay determinations in
Superfund settlements. EPA will issue the first three policy documents, addressing
general issues that apply to all Superfund ability-to-pay settlements and issues specific to
ability-to-pay determinations for individuals and small businesses, as a package. The
Agency also will issue the fourth policy document, addressing ability-to-pay issues
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specific to municipalities, at a later date. EPA also may develop a computer-based
training program to support the implementation of the policy documents.
Contacts: Kathleen Backer, OSRE, (202) 564-4209 (De minimis issues)
Bob Kenney, OSRE, (202) 564-5127 (Ability-to-pay issues)
3. ALLOCATION PROCESS
Description: The Allocation Pilots test a fundamentally different approach to the
allocation of Superfund costs. Under this approach, PRPs may settle their liability based
upon their "share" of cleanup costs, assigned by a neutral party known as an allocator.
The allocator is selected by the PRPs and EPA (as representative of the orphan share), and
will conduct a non-binding out-of-court allocation process. The allocator assigns shares
of responsibility to the PRPs based on a number of equitable factors. EPA will then offer
to settle with parties for their allocated share. Under this scheme, EPA expects to be
responsible for 100% of the orphan share, which includes the shares of parties which are
defunct or insolvent. In addition, EPA expects to be responsible for the shares of non-
settlors. By contrast, at many other sites, EPA often settles with PRPs who are capable of
performing the cleanup, who then routinely resort to expensive contribution litigation and
other lawsuits to resolve allocation disputes among the PRPs.
The Allocation Pilots are patterned after the allocation process proposed in H.R. 4916, the
"Superfund Reform Act of 1994 (SRA)". Even though that bill was not passed, the
Agency believed there were: 1) benefits to "test driving" an allocation provision; and 2)
evaluating the impact an allocation process has on settlement.
Status: To date, EPA offered to pilot the allocation process at 12 Superfund sites. Two
of the sites reached settlement outside the allocation process, leaving 10 active pilot sites.
The Allocation Pilots are at various stages. At several sites, EPA and PRPs hired the
allocator and are now taking positions on the respective shares of the parties. At other
sites, the parties have only recently selected the allocator. At the remaining sites, the
Agency is either following up on PRP nominations for adding parties into the allocation or
completing a de minimis settlement before selecting the allocator.
Although the pilots are not yet complete, a great deal has been learned about the strengths
and weaknesses of the SRA allocation provisions and of the allocation process in general.
In sum, EPA has learned that the SRA allocation provisions would have been difficult to
implement and may have had unintended consequences. For example, projected time
frames for completing the nominations process and hiring of the allocator were
December 1996 Page 35
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insufficient to address the myriad issues raised by parties. Moreover, while the SRA
allocation process identified the allocator as the party to resolve issues, the parties in the
process were much more comfortable resolving issues themselves. An unintended
consequence of the allocation scheme is that any party can undermine the whole process
by treating the allocation as equivalent to litigation. At several sites, parties presented
numerous requests for information, requested depositions, and nominated thousands of
parties with little supporting information other than a name in the phone book. Moreover,
there have been instances where almost all the parties sought settlement, but one party
insisted on going through the full allocation process. These examples indicate that an
allocation process may increase, not decrease, transaction costs on all parties.
EPA also has learned that a formal allocation process may provide a useful structure, but
flexibility is necessary to meet site-specific circumstances. At several of the pilot sites, the
allocation parties preferred to select the allocator by consensus rather than invoke formal
voting procedures envisioned in the SRA. At another site, the parties waived the
nomination stage because there was no evidence of additional PRPs, saving significant
time and effort. In addition, at several of the original pilot sites where EPA offered the
allocation process, the parties chose to enter into settlement negotiations immediately
rather than enter the pilot because: remedy costs were relatively small (compared to
expected costs of the allocation process), the expected orphan share was not significant,
or other Agency initiatives (e.g., orphan share) provided a sufficient basis for settlement.
Following is greater amplification of lessons learned about the allocation process:
Identifying additional PRPs through a nominations process requires
collaboration (and trust) between Agency and PRPs. The nominations stage of the
pilot has proven to be very important to both the PRPs and the Agency. For the
PRPs, the nominations period is a valuable opportunity to identify additional allocation
parties who may be assigned shares by the allocator. For the Agency, it is a valuable
vehicle for obtaining additional information about the parties linked to the site and
making the necessary determinations about the nominated party's status (e.g., whether
the party is eligible for de minimis or ability-to-pay settlements). To discourage PRPs
from making frivolous nominations, the SRA allocation process included a fee-shifting
provision. Under the fee-shifting provision a nominating PRP pays the costs incurred
by the parties it nominated (but who EPA believes are not liable) if the nominee is
subsequently assigned a zero share by the allocator. At several of the sites, it was
necessary to employ the fee-shifting arrangement to limit "phone book" nominations.
At other sites, it has not been necessary to use this tool because the Agency and PRPs
have been working together to identify additional parties and the parties agreed that
EPA would be the final decision-maker for including additional parties in the process.
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Allocator selection, hiring, and payment process may need revision. The Agency
has learned that the allocator selection and hiring process set forth in the SRA requires
considerable time and resources. In practice, at sites with a small number of PRPs,
parties preferred to use a convening process to select the allocator by consensus and
by personal interviews, rather than use the mandatory voting procedures outlined in
the SRA. At those sites where there are a greater number of PRPs, it still may be
appropriate to select the allocator through the voting process. Also, some parties (in
particular, small parties) have indicated that they do not want to participate in this
phase of the allocation process (i.e., they do not want to incur transaction costs), but
they do want to participate in the later settlement based on the allocator's report. In
these cases, the parties should not have to participate in the allocation process,
although they still may be assigned a share by the allocator.
Some PRPs have also questioned the appropriateness of EPA (since the Agency is a
party in the allocation) solely contracting for the allocator services. Finally, from the
Agency's perspective, greater flexibility will need to be introduced into Federal
contracting and other administrative procedures to support an allocator
selection/hiring process.
Resolution of issues during the allocation process benefits the parties and
expedites settlement. An allocation process can be used by the parties to resolve
issues, thereby narrowing the issues going to the allocator for a decision. Specifically,
the process provides an opportunity for parties to identify shares prior to issuance of
the allocator's report. For example, at one site, the parties identified the individual
shares of the generators through a private party allocation. Because the Agency
accepted that private party allocation, the allocator's role was narrowed to
consideration of only the division of shares between the generator group and the
owner/operator group. At another site, EPA and the parties agreed that they would
resolve several issues through a collaborative effort and that the allocator would
consider only those issues if unresolved by the parties. By narrowing the issues before
the allocator, settlement is expedited and parties incur less transaction costs.
Settlement before the allocator's report. At several sites, once EPA convened the
allocation process, PRPs inquired about the possibility of settlement prior to initiation
of the allocation if the Agency was willing to fund the orphan share. EPA's response
has been different depending on the number of parties requesting the settlement, and
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assurances that the settlement would facilitate cleanup activities. Where EPA has settled
with less than all the allocation parties, parties who choose not to settle remain in the
allocation and are afforded the opportunity to settle later based on the share assigned by
the allocator. If all parties settle, the allocation ceases.
A recent example of a settlement is at the Old Southington Landfill pilot site in Region
1. There, with the assistance of mediators (in addition to allocators), all of the
participants in the allocation process reached an agreement whereby the parties (with
EPA funding the orphan share) will pay their negotiated share of response costs.
Importantly, this settlement provides for the immediate cleanup of the site. This
agreement enables all settling parties to cap their exposure, while significantly reducing
transaction costs. Critical to achieving this result were two components: 1) the
government's willingness to fund the orphan share of cleanup costs and; 2) the culture
of collaboration established among the pilot participants (which then fostered a
constructive, problem solving approach to resolving numerous impediments to
settlement.)
Next Steps: The Agency will continue to implement and evaluate the allocation process
at pilot sites.
Contacts: Gary Worthman, OSRE, (202) 564-4296 (case issues)
David Batson, OSRE, (202) 564-5103 (case issues)
Nancy Deck, OSRE, (202) 564-6039 (contract issues)
II. ECONOMIC REDEVELOPMENT
4(a & b). BROWNFIELDS INITIATIVE
Description: The Brownfields Economic Redevelopment Initiative is a comprehensive
approach to empowering States, local governments, communities and other stakeholders
interested in economic redevelopment to work together in a timely manner to prevent,
assess, safely clean up, and sustainably reuse brownfields. EPA is addressing
implementation of this initiative through a Brownfields Action Agenda. The Action
Agenda is a collection of bold strategies that will continue to evolve as the Brownfields
Initiative matures. To date, activities have focused on four main categories: 1)
implementing Brownfields Pilot programs in cities, counties, towns and Tribes across the
country; 2) clarifying liability and other issues of concern for lending institutions,
municipalities, prospective purchasers, developers, property owners and others; 3)
establishing partnerships with other EPA programs, Federal agencies, States, cities, and
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stakeholders; and 4) promoting community involvement by supporting job development
and training activities linked to brownfield assessment, cleanup, and redevelopment.
4a. Brownfields Pilot Projects
Status: By the end of FY96, EPA announced the selection of 76 Brownfields Pilots to be
funded through cooperative agreements at up to $200,000 each for a two-year period.
The cooperative agreements for all pilots are subject to negotiation. Of the 76 Pilots, 39
are national pilots selected and funded through Headquarters; while 37 are Regional pilots
selected and funded through the 10 Regional offices. EPA intends the pilots to perform
the following: provide redevelopment models; direct efforts toward the removal of
regulatory barriers; and facilitate coordinated public and private efforts at the Federal,
State, and local levels.
EPA has signed Memoranda of Understanding (MOU) with other Federal partners to
coordinate issues related to brownfields redevelopment and to leverage additional
opportunities. In FY96, MOUs were signed with the Department of Housing and Urban
Development, Economic Development Administration, and the Departments of Labor and
Interior.
EPA conducted a Brownfields Pilot National Workshop in Washington, D.C. in February
1996 and a Brownfields National Conference in Pittsburgh, Pennsylvania in September
1996. A variety of guidances and other initiatives announced by the Agency have affected
the liability aspects of the Brownfields Action Agenda. EPA also archived over 27,000
sites from the Federal Superfund Inventory ) CERCLIS.
Next Steps: EPA will announce an additional 25 pilots in FY97 as well as provide
guidance and funding to capitalize revolving loan funding programs for cleanup activities
of the first 29 pilot recipients (i.e., those receiving assessment pilot funding prior to 1996).
EPA also will initiate expansion of site assessments. The Agency will support State
voluntary cleanup program development. EPA will announce additional new Action
Agenda commitments beginning in calendar year 1997. EPA will coordinate support for
the efforts of the Federal Interagency Working Group on Brownfields.
Contact: Linda Garczynski, OSWER, (202) 260-1223
December 1996 Page 39
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4b. Community Outreach
Status: Each EPA Region has established a Brownfields coordinator position to oversee
Brownfields pilots and initiate other Brownfields activities. EPA also has assigned five
staff members to cities through inter-governmental personnel assignments to assist in
addressing the Brownfields redevelopment challenges presented at the State and local
levels.
EPA, with the National Environmental Justice Advisory Council, co-sponsored a series of
public dialogs in summer 1995 related to urban revitalization and Brownfields. In
conjunction with the Common Sense Initiative (CSI), EPA has identified brownfields
pilots in several cities that provide opportunities to concentrate on the impact of particular
industrial sectors on brownfields. In particular, several brownfields pilots have been
identified for linkage with the CSI "Iron and Steel Sector."
EPA is promoting and fostering job development and training through partnerships with
brownfields pilot communities and community colleges. EPA is working with the
Hazardous Materials Training and Research Institute to expand environmental training and
curriculum development. In November 1995, EPA hosted a workshop in Baltimore,
Maryland to assist community colleges from 17 Brownfields pilot communities in
developing environmental job training programs. In July 1996, EPA held a second
workshop in St. Louis, Missouri with additional community colleges from more recently
selected Brownfields pilot communities. Through a cooperative agreement with Rio
Hondo Community College, EPA has established an environmental education and training
center to provide comprehensive technical-level training. EPA and the National Institute
of Environmental Health Sciences (NIEHS) are working to coordinate minority worker
training grant recipients with Brownfields pilot city activities.
Next Steps: EPA will continue outreach to stakeholders on Brownfields involvement.
Technical assistance will be provided through existing partnerships and pilots with other
Federal agencies and non-governmental organizations.
Contact: Linda Garczynski, OSWER, (202) 260-1223
4c. REFINING CERCLIS
Description: EPA has refined the process for registering and maintaining site information
in CERCLIS (EPA's automated inventory of potential or confirmed hazardous waste sites
addressed under the Federal Superfund Program) through archiving. Of the 40,500 sites
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that have come to the attention of Superfund, less than 5% have made it onto the final
NPL. The perceived potential threat of Superfund liability historically remained for sites
not listed, however, even if evaluated and determined not to warrant NPL placement since
they were still listed in the Agency's CERCLIS inventory.
In response to growing concerns about this unintended stigma associated with sites listed
in CERCLIS, EPA introduced the CERCLIS archiving effort in early 1995 as part of the
Agency's Brownfields initiative on economic redevelopment. Specifically, CERCLIS
archiving is an ongoing effort that addresses this stigma by removing those sites with no
further interest under the Federal Superfund Program from the CERCLIS inventory.
Status: EPA initially archived 24,000 sites from the CERCLIS inventory in February
1995. EPA and the States had screened these 24,000 sites under Superfund's Site
Assessment Program and found them to be of no further Federal Superfund interest.
In June 1996, EPA provided guidance identifying types of sites eligible for archiving, and
initiated efforts to research those sites remaining in the CERCLIS inventory and make
archive decisions as appropriate. These actions, combined with completions of ongoing
assessment work, have yielded over 27,000 sites archived from CERCLIS through FY96.
Next Steps: The archiving effort is a continuous process ) as more sites are entered into
CERCLIS and/or screened out, the CERCLIS and archive lists will change. EPA
anticipates archiving over 1,000 additional sites from CERCLIS per year over the next
several years based on completing Superfund activities at existing and new sites.
Contact: Randy Hippen, OERR, (703) 603-8829
4d. CLARIFYING NPL SITES
Description: Listing property on the NPL may affect the value of that property and the
surrounding area ) whether or not all of the property or adjacent property is contaminated.
In order to facilitate the transfer, development or redevelopment of property or portions
of property determined to be uncontaminated, EPA (as a part of its Economic
Redevelopment initiative) is developing a program which provides its Regions with the
flexibility to clarify the areas of sites determined to be contaminated or uncontaminated.
The Regions have already initiated partial deletions of several NPL sites.
December 1996 Page 41
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Another product of this initiative will be guidance which describes the factual basis on
which EPA may issue assurances that areas of sites are not contaminated and the
appropriate consultation and coordination that will accompany these assurances. As part
of this initiative, EPA will also develop a tool (e.g., Soil Screening Guidance) to identify
portions of sites that do not warrant Federal attention. In addition, EPA is considering,
on a pilot basis, deletion of remediated parcels of a closing military base that is listed on
the NPL so that the parcel may be returned to productive use. Complementing this effort
is the next initiative which includes clarifying Federal liability for prospective purchasers.
Status: The partial deletion guidance was signed and sent to the Regions on April 30,
1996 (OERR Directive 9320.2-11). This guidance does not outline partial deletion
procedures since they are the same as deletion procedures for total site deletion. This
guidance is aimed at mapping and tracking partial deletions at NPL sites in order to better
portray the Agency's successes.
Region 6 published the first NOID in the Federal Register on April 11, 1996 (61 FR
16068). Regions 4 and 10 subsequently have published three more NOIDs. Regions 3, 4,
5, and 8 will determine if partial deletion is warranted. Region 6 will continue with the
current process of deleting sites from the NPL. Region 6 expects to finalize four partial
deletions in FY97, propose two additional partial deletions, and propose full deletions at a
number of sites. Region 2 is waiting on the Risk Assessment Completion Report.
Deletions of remediated parcels at Federal facilities have not yet taken place.
EPA issued final soil screening guidance in May 1996. The soil screening levels
established in the guidance serve as a basis for partial deletions of NPL listings. They also
will complement the ongoing S ACM initiative and provide the framework for other
cleanup efforts, such as RCRA corrective actions, voluntary cleanup programs, and
State/Tribal cleanup programs. Additionally, the development of soil screening levels will
be useful in streamlining baseline risk assessment.
Next Steps: The partial deletions portion of this reform is currently being implemented as
Reform 9 (i.e., Delete Clean Parcels from the NPL) in the third round of Superfund
reforms.
Contact: Terry Keidan, OERR, (703) 603-8852
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4e. REMOVING LIABILITY BARRIERS
Description: EPA is identifying options and developing tools to remove liability barriers
to the cleanup and redevelopment of contaminated properties, giving prospective
purchasers, lenders, and property owners more assurances of a safe investment. The
Agency also is developing guidance to define the Federal, State, and Tribal roles at sites
with redevelopment potential, as well as of specific parties (e.g., lenders and prospective
purchasers) associated with contaminated properties.
Status: EPA issued three guidance documents in 1995 and one document in 1996 that
provide some assurance to prospective purchasers, certain lenders, and certain property
owners that they do not need to be concerned with Superfund liability. The guidances, as
described below, clarify EPA's intentions toward certain parties as a result of their
association with and activities at a site:
- "Guidance on Agreements with Prospective Purchasers of Contaminated
Property," May 1995 (http://www.epa.gov/swerosps/bf/gdc.htm; 60 FR 34792 (July
3, 1995)) )The new guidance supersedes the portion of the 1989 guidance dealing
with prospective purchasers and allows the Agency greater flexibility in entering into
agreements which provide a promise by the United States not to sue the prospective
purchaser for contamination existing at the time of purchase and provides contribution
protection. The new guidance allows for a broader application of prospective
purchaser agreements (PPAs) by expanding the universe of eligible sites and allows the
use of such agreements when the agreement results in a substantial indirect benefit to
the community in terms of cleanup, creation of jobs, and development of property. A
model prospective purchaser agreement also was issued to streamline the process.
- "Policy Towards Owners of Property Containing Contaminated Aquifers," May
1995 (http://es.inel.gov/oeca/osre/950524-l.html, http://www.epa.gov/
swerosps/bf/gdc.htm) )The policy describes EPA's exercise of enforcement discretion
to not take enforcement actions under CERCLA against owners of property above
aquifers contaminated by hazardous substances resulting from migration outside the
property. Additionally, if the owner is being sued or threatened to be sued by a third
party who caused the contamination, EPA will consider providing contribution
protection through a settlement with the owner.
"Policy on CERCLA Enforcement Against Lenders and Government Entities
that Acquire Property Involuntarily," September 1995 (http://www.epa.gov/
swerosps/bf/gdc.htm, NTIS # PB95-234498) )The policy is a joint statement of intent
December 1996 Page 43
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from EPA and DOJ to apply as guidance the provisions of the invalidated rule on Lender
Liability under CERCLA, 57 FR 18344 (Apr. 29, 1992). Specifically, the policy advises
Regional staff to use the rule and its preamble as guidance in determining when EPA
should exercise its enforcement discretion and not take an enforcement action under
CERCLA against a lender or a government entity. [NOTE: Legislation passed as part of
the Omnibus Appropriations Bill for FY97 (the Asset Conservation, Lender Liability and
Deposit Insurance Protection Act, sections 2501 to 2505) contains statutory provisions
which are based substantially on the 1992 rule and address the CERCLA liability of
lenders, fiduciaries, and government entities who acquire property involuntarily. See Pub.
L. 104-208.]
- "Policy on the Issuance of Comfort/Status Letters," November 1996 ) The policy is
intended to respond to requests from parties for some level of comfort that if they
purchase, develop, or operate on brownfields property, EPA will not pursue them for
the costs to clean up any contamination resulting from the previous use. The policy
contains four sample comfort/status letters which address the most common inquiries
for information that EPA receives regarding contaminated or potentially contaminated
properties. The sample letters provide an interested party with all releasable information
EPA has regarding a particular piece of property, what that information means, and the
likelihood of or current plans for Federal Superfund action. The "comfort" comes from
knowing what EPA knows about the property and what its intentions are in terms of a
Superfund response.
The accomplishments achieved by this reform can be seen at many sites. As a result of
prospective purchaser agreements not only is human health and the environment protected
but economic benefits can be seen at the community level. For example, at the Indiana
Woodtreating Site near Bloomington, Indiana, the work done under a PPA will prevent
contaminants from entering Clear Creek, a tributary of the St. Joseph River, which is a
drinking water source for the City of Bloomington, Indiana. Additionally, the purchaser
will renovate dilapidated structures on site that are currently accessible to vagrants and
vandals. The renovation will create new employment opportunities and an additional
property tax base for the local government and school taxing units. At the Osage Metals
Site in Wyandotte County, Kansas, the new property owner agreed to reimburse EPA
$80,000 for costs incurred in cleaning up PCB and lead contamination at the site and plans
to redevelop the property into a productive business that will generate tax revenue for
Kansas City.
All over the country, redevelopment is occurring. Examples of redevelopment include,
lead and PCB-contaminated sites becoming retail commercial zones (Prestolite Battery,
Vincennes, Indiana), and radioactive soil and debris being capped, allowing the
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construction of a retail hardware store (Denver Radium, Denver, Colorado). EPA's
commitment to removing liability barriers may be seen in the increased numbers of
agreements. Of the 45 total prospective purchaser agreements reached, 24 (or over 50%)
have been concluded since May 1995.
Next Steps: Efforts will continue on the development of a broad array of tools to address
the concerns parties have regarding potential Superfund liability associated with brownfield
properties. The Agency also is creating the "Catalog of Tools for Managing Risk at
Contaminated Properties" to identify, describe, and differentiate between the various tools
available. The catalog is designed for parties interested in purchasing, developing, leasing,
or cleaning up brownfield properties and will specify the situations at which the different
tools are applicable and appropriate.
Contact: Lori Boughton, OSRE, (202) 564-5106
III. COMMUNITY INVOLVEMENT AND OUTREACH
5a. COMMUNITY ADVISORY GROUPS (CAGs)
Description: EPA is committed to early, direct, and meaningful public involvement in the
Superfund cleanup process. One of the ways communities are participating in cleanup
decisions at hazardous waste sites around the country is through Community Advisory
Groups (CAGs). CAGs are made up of representatives with diverse community interests
and provide a public forum for community members to present and discuss their needs and
concerns about the decision-making process at sites affecting them.
A CAG is an excellent example of how community involvement can enhance, rather than
impede, the Superfund cleanup decision-making process. EPA continues to support the
establishment of CAGs (primarily, but not exclusively, for those communities that have
sites on the NPL), or the conversion of existing community organizations into EPA CAGs.
Status: EPA issued "Guidance for Community Advisory Groups at Superfund Sites"
(OSWER Directive #: 9230.0-28, http://www.epa.gov/swerosps/bf/gdc.htm) in December
1995, encouraging the use of CAGs at Superfund sites and since that time, they have
proven to be an effective mechanism to facilitate the participation of community members.
Initially, EPA slated the program to have 10 pilot CAG sites; however, the number of
"pilot" sites grew to 16 between the time the program started and when it was officially
taken out of the pilot stage. In July 1996 (at the National Community Involvement
Conference in Chicago), EPA took the program out of the pilot stage and started accepting
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names of additional CAGs. As of September 1996, the number of CAGs has grown to 23
and a budget is being developed for future support of the CAG program.
EPA has completed a document containing case studies on five CAGs which will be ready
for distribution in late November. This document includes case studies of the following
hazardous waste sites: 1) The Brio Refining, Inc., Superfund Site in Harris County, Texas;
2) The Carolawn, Inc., Superfund Site in Chester County, South Carolina; 3) The Colorado
School of Mines Research Institute Site in Golden, Colorado; 4) The Oronogo-Duenweg
Mining Belt Site in Jasper County, Missouri; and 5) The Southern Maryland Wood
Treating Superfund Site in Hollywood, Maryland. EPA developed the case studies based
on interviews with: community members involved in the CAGs at these sites, EPA
personnel, and State and local government personnel involved in the site cleanup efforts.
Next Steps: EPA will continue to: evaluate existing CAGs and their impact on
community involvement; and identify and develop new tools to promote and assist CAGs.
Several fact sheets on the CAG program should be ready for distribution early in FY97.
Contact: Leslie Leahy, OERR, (703) 603-9929
5b. TECHNICAL ASSISTANCE GRANTS (TAGs)
Description: The Agency is encouraging the Regions to consider means to increase
citizen involvement, such as advance funding of TAGs and the authorization of training for
TAG recipients. TAGs provide resources to eligible communities affected by Superfund
sites to acquire independent technical assistance to help them understand and comment on
site-related information. More than 185 TAGs have been awarded since the program's
inception in 1988.
Status: Increasing citizen involvement through the simplification of the TAG application
and administrative processes is underway. The TAG regulation was revised during FY95-
96. The revised rule, which the Agency hopes will be promulgated during FY97, contains
several simplifying provisions. For example, elimination of the three-year budget period
will allow groups to determine their own budget period according to site specific needs.
Removal of the 20% administrative cap also provides EPA flexibility in negotiating grants
with recipients without being hindered by arbitrary limitations on administrative expenses.
An additional facet of this revised rule is that it provides an interpretation of congressional
intent regarding the Superfund Amendments Reauthorization Act's (SARA's) "one TAG
per site language" such that the rule allows multiple non-concurrent grant recipients.
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Next Steps: Preparations are underway to publish the proposed revised rule by June 1997.
This revised rule will contain the provisions for limited cash advances. A collaboration
between the TAG program and Technical Outreach Services for Communities (TOSC) to
devise ways to provide communities with training is underway.
Contact: Lois Gartner, OERR, (703) 603-8889
6. COMMUNITY INVOLVEMENT IN THE ENFORCEMENT PROCESS
Description: EPA has identified various opportunities to enhance community participation
in the enforcement process at Superfund sites. The Agency is implementing several
approaches, including inviting communities to review and comment on draft statements of
work and actively disseminating information. EPA is piloting these approaches to observe
what impact they may have on Superfund cleanups.
Status: Under this reform initiative, EPA identified and tested various approaches to
enhancing community involvement in technical settlement issues. The Agency initiated
pilot projects at 13 sites in 9 of its 10 Regions. These pilot measures are related to, but
distinct from, the steps that the Agency already takes at each site to involve the community
whenever it selects a response action or finalizes a settlement agreement (e.g., opportunity
for the public to review and comment on proposed cleanup plans or settlements). It also is
distinct from, although coordinated with, a separate Superfund reform involving the
establishment of CAGs at Superfund sites. This other reform (See Initiative 5 above) is not
limited to sites where PRPs are implementing response actions under EPA oversight.
Many of the piloted activities provided opportunities for communities to discuss and review
drafts of technical plans known as Statements of Work (SOWs) for sites where PRPs are
designing and conducting cleanups. Many of the other projects in this initiative involve
giving local citizens an opportunity to discuss and review draft SOWs for Feasibility
Studies (FSs), which evaluate possible measures for reducing threats posed by the
Superfund sites to human health and the environment. For most, if not all, of these sites,
the Regions intend to continue enhanced community involvement measures during the later
Remedial Design/Remedial Action (RD/RA) phase of the cleanup. Other pilots in this
initiative relate to aspects of the Superfund process other than the FS and RD/RA stages.
For example, two of the projects involve increasing public involvement in removal actions
being implemented by PRPs. In addition, at two other pilot sites, EPA facilitated
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communication between the PRPs and local citizens to develop a consensus on future land
use. Where consensus is reached, the Agency may propose an appropriate amendment to
the cleanup option originally selected by EPA and documented in its ROD. Further, at the
Asarco Tacoma Smelter Facility (Commencement Bay, South Tacoma Channel,
Washington), Region 10 provided the public with an opportunity to review and comment
on various technical documents, including a treatability study prepared by the PRPs for a
particular alternative cleanup technology.
Next Steps: EPA is evaluating the impacts that enhanced involvement had on both the
settlement negotiation process and the studies and cleanups themselves. By examining a
variety of measures, the Agency intends to identify those techniques that are most
successful in strengthening community participation.
Contact: Deniz Ergener, OSRE, (202) 564-4233
Alice Ludington, OSRE, (202) 564-6066
IV. ENVIRONMENTAL JUSTICE
7a. TRAINING AND HEALTH SERVICE ASSISTANCE TO COMMUNITIES
Description: EPA and the U.S. Public Health Service (PHS) established the Medical
Assistance Plan (MAP) to respond to the health concerns of under-served citizens living
near hazardous waste sites. MAP provides: 1) physician training and placement;
2) medical testing to assess health affects related to hazardous substance exposure;
3) technical assistance to local agencies and health care providers; 4) environmental health
education to health care providers; 5) referral services to assist individuals in locating
medical specialty clinics or specialists; and 6) medical follow-up for individuals who
demonstrate documented exposure to hazardous substances or adverse health conditions
related to possible exposures. The Agency will test the MAP program at various
Superfund sites.
Status: Although EPA targeted four sites for testing the program during FY95, funding
was available for only one site, the Del Amo/Montrose site in Torrence, California. At the
Del Amo site, EPA's Region 9 office has taken steps to temporarily relocate residents living
near the Superfund site.
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Next Steps: EPA obligated $400,000 to continue the Del Amo project in FY96. In
addition, EPA and PHS will continue to seek funds sufficient to finance additional pilot
projects in FY97.
Contacts: Keith Takata, EPA Region 9, (415) 744-2355
Michael Montgomery, EPA Region 9, (415) 744-2362
7b. JOB TRAINING AND DEVELOPMENT
Description:
- Minority Worker Training - The National Institute of Environmental Health Sciences
(NIEHS), in cooperation with EPA, is piloting seven minority worker training
programs at 11 selected sites nationally. This program will test a range of strategies for
recruiting and training young people who live in low-income and minority communities
near Superfund sites to work in the environmental field. It prescribes pre-employment
training (literacy and life skills), as well as environmental worker training (hazardous
waste and asbestos handling, lead abatement, and health and safety training).
EPA is developing a Superfund Jobs Training Initiative (SuperJTI) that focuses on job
training for residents living near Superfund sites, particularly in socio-economically
disadvantaged communities. Residents who participate in the initiative will gain career
skills and be a part of the environmental remediation activities in the neighborhood.
The SuperJTI combines extensive classroom instruction and hands-on work experience
for each participant. Upon completion of the program, each person will possess
marketable skills and become a valuable member of the community's workforce.
Classroom instruction and training is an extremely important component of SuperJTI.
EPA has partnered with NIEHS to provide such training through the NIEHS Minority
Worker Training Program.
Environmental Curriculum Development - Under an EPA grant, the Hazardous
Materials Training and Research Institute (HMTRI) will develop environmental work
force training programs and conduct national workshops for community colleges
located near Superfund and brownfield sites.
Status: In general, EPA has created job training and development activities linked to its
environmental justice and Brownfields initiatives. Currently, the Agency is facilitating and
encouraging local coordinated planning, not only to provide quality worker training, but
also to ensure that Brownfields sites hire workers from local job training programs.
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- Minority Worker Training - EPA has awarded 20 NIEHS minority worker training
grants to facilitate the development of urban minority youth worker training
programs.
Environmental Curriculum Development - EPA is working with the HMTRI to
expand environmental training and curriculum development at community colleges
located near Brownfields pilot communities. In May and November of 1995,
HMTRI hosted workshops at Trident Technical College in Charleston, South
Carolina and Catonsville Community College in Maryland to assist community
colleges located in Brownfields cities in developing environmental job training
programs. A total of 20 Brownfields pilot cities were represented at the
workshops. In partnership with EPA, Cuyahoga Community College (Tri-C),
located in Cleveland, Ohio established a community business task force to advise
the college program on how to develop training programs which will ensure that
Cleveland's Brownfields redevelopment efforts will be supported by well trained
workers. In the summer of 1995, the City of Bridgeport's Office of Planning and
Economic Development hosted an "Environmental Education and Job Training
Summit" to share information on Brownfields and to provide a forum for
community, government, and business representatives to plan collaborative
projects.
Next Steps:
- Minority Worker Training - EPA plans to continue to work with the NIEHS
minority worker training program and hopes to develop additional pilots in
brownfield areas.
Environmental Curriculum Development - EPA has chosen two pilot sites:
Cuyahoga Community College (Tri-C) in Cleveland, Ohio and Rio Hondo
Community College in Whittier, California. HMTRI plans to increase the number
of community colleges offering environmental work force training programs over
the next year.
Contact: Sharon Beard, EPA Region 4, (919) 541-1863
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V. CONSISTENT PROGRAM IMPLEMENTATION
8. GUIDANCE FOR REMEDY SELECTION
Description: To improve consistency and to take advantage of streamlining
opportunities in site characterization and remedy selection, EPA prepared the following
documents: "Soil Screening Guidance," "Land-Use Directive," and several
Presumptive Remedy Guidances. EPA estimates that these guidances have been
implemented at an increasing number of sites, resulting in significant cost and time
savings.
Status:
Soil Screening Guidance - EPA issued final "Soil Screening Guidance" (OSWER
Directive #: 9355.4-17A) on May 17, 1996. The soil screening levels established in
the guidance will complement the ongoing SACM initiative and also provide the
framework for other cleanup efforts, such as RCRA corrective actions, voluntary
cleanup programs, and State/Tribal cleanup programs. Additionally, the
development of soil screening levels will be useful in streamlining baseline risk
assessment. The "Soil Screening Guidance: User's Guide," "Fact Sheet," and
"Technical Background Document" have also been posted on the EPA/Superfund
Homepage on the Internet.
- Land-Use Directive - On May 25, 1995, EPA issued a new directive entitled, "Land
Use in the CERCLA Remedy Selection Process." (OSWER Directive #: 9355.7-04)
This memorandum clarifies that land use should be considered in risk assessment
and remedy selection. In addition, it describes how the assumptions about land use
should be made by: involving the community, considering the context of the site,
and determining the site's potential for reuse. One of the memorandum's important
messages is that an assumption of a land use other than residential (e.g., industrial)
may be appropriate in remedy selection. The impact of this memorandum will
create more remedies tailored to the specific context of sites, better community
involvement, and more support for cleanup decisions.
Presumptive Remedies - EPA issued a general presumptive remedy document,
"Policy and Procedures," in September 1993. The Agency published the first Wood
Treater presumptive remedy along with presumptive remedies for VOCs in soils
and municipal landfills in December 1995. EPA completed the "Ground Water
Presumptive Response Strategy" in October 1996. The Agency completed a
"User's Guide for VOCs in Soil Presumptive Remedy" (OSWER Directive #:
9355.0-48FS) in July 1996. A final draft of a "User's Guide to Accompany the
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Wood Treaters Presumptive Remedy" (OSWER Directive #: 9200.5-162) was issued
for review and comment in August 1996. Although EPA's primary focus is on the
development of new presumptive remedies, it has begun to evaluate existing
presumptive remedies.
The Agency has completed a supplemental bulletin which discusses the time and
estimated future cost reductions demonstrated by the municipal landfill pilot sites. EPA
estimates time savings ranging from 36% to 56%, and future cost reductions up to 60%
at the municipal landfill pilots. In addition, the "Municipal Landfill on Military Bases
Presumptive Remedy," (OSWER Directive #: 9355.0-62FS) developed by the Office of
Federal Facilities Enforcement, appears to be widely utilized.
EPA is beginning to collect and analyze data on the use of presumptive remedies. For
example, Region 9 reports they have nine sites that selected the remedy recommended
by the presumptive remedy guidance, or which are in the presumptive remedy process.
The EPA Office of Inspector General (OIG) conducted an independent review of the
use of presumptive remedies entitled, "Review of Cleanup and Pilot Project at South
Indian Bend Wash Superfund Site in Tempe, Arizona." In the summary of OIG's
major findings, the report concluded: "Use of a. Presumptive Remedy increased
consistency in decision-making by taking advantage of lessons learned at similar sites,
and allowed speedup of the Feasibility Study process." The report acknowledged that
the use of "...presumptive remedies is expected to create greater consistency, certainty
and quality of remedy decisions in the near term. Time and cost savings are expected
to increase over time...."
Next Steps: Presumptive Remedies - EPA will publish the "Manufactured Gas Plant
Presumptive Response Strategy" in February 1997, and the presumptive remedy for
PCB sites is expected in April 1997. EPA has been engaged in a dialog with the
Department of Agriculture to produce a Grain Storage presumptive remedy that would
bridge to the existing VOC and Ground Water presumptive remedies. The Agency is
developing a Metals in Soils presumptive remedy in partnership with DOE which
should be available in spring 1997. EPA is developing a presumptive remedies
supplemental bulletin for future beneficial uses of municipal landfills. The Agency is
preparing a supplemental bulletin for dual- or multi-phase extraction (MPE) to assist
site managers using the VOCs presumptive remedy. OERR is developing a list to track
the universe of presumptive remedy sites. This list will aid in evaluating the time and
future cost reductions for presumptive remedies and future supplemental bulletins
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are planned that will document time and future cost reductions, and other benefits
associated with the use of presumptive remedies.
Contacts: David Cooper, OERR, (703) 603-9034 (Soil Screening issues)
Sherri Clark, OERR, (703) 603-9043 (Land Use issues)
Scott Fredericks, OERR, (703) 603-8771 (Presumptive Remedy issues)
9. RISK-SHARING
9a. Implementing Innovative Technology
Description: To share risks associated with implementing innovative technologies,
EPA will agree to share the risks for a limited number of approved projects by
"underwriting" the use of certain promising innovative approaches. To encourage
PRPs to try new approaches, EPA may agree to share up to 50% of the cost of selected
innovative remedies if the remedy fails and subsequent remedial action is required.
EPA has already agreed to risk-sharing at one site.
Status: Several Regions have identified candidate sites for the risk-sharing initiative.
In Region 1, EPA has entered into a risk-sharing agreement with PRPs at the
Somersworth Landfill site in New Hampshire. Under the agreement, EPA agreed to
pay half the cost of the innovative technology, not to exceed $3.5 million, if the
technology does not fulfill expectations and additional remedial action is necessary.
The technology involved, an innovative "funnel and gate," helps to restore ground
water by channeling the flow to a permeable wall containing iron filings. Contaminants
are removed as they pass through the gate. If successful, this in situ technology may
serve as an alternative to costly and protracted "pump and treat" approaches.
Next Steps: The Agency is in the process of preparing guidance on implementing the
risk-sharing initiative, which is expected by June 1997. Also, given the increased State
role in remediation, EPA is developing mechanisms to engage State agencies in this
initiative, initially through the Interstate Technology and Regulatory Cooperation
Workgroup (ITRC).
Contacts: Jim Cummings, TIO, (703) 308-8796
John Kingscott, TIO, (703) 308-8749
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9b. Identifying Obstacles to Using Innovative Technology
Description: EPA will develop programs to share risks associated with implementing
innovative technologies by exploring and identifying contractor's concerns with the
selection and use of innovative technologies.
Status: Following discussions with some members of the Response Action Contractor
(RAC) community, EPA learned that the lack of indemnification for prime contractors
is hampering the use of innovative technology. Prime contractors are unwilling to
recommend innovative technologies for fear that they will be sued for negligence in not
recording "tried and tested" technologies. Without indemnification, there is little
incentive for the prime contractors to select an innovative technology. Furthermore, a
prime contractor may not choose to test an innovative technology if, again, there is a
fear of lawsuits if the technology does not perform as expected.
To address the concern regarding indemnification for innovative technologies, EPA is
expanding indemnification coverage to include both the prime contractor and the
innovative technology contractor when indemnification is offered. Thus, both the
technology vendor and the prime will be provided protection from third party
negligence claims that may result in a pollution release. A statement on EPA's offering
of indemnification is presented in an "Innovative Technology Policy Directive"
(OSWER Directive #: 9380.0-25) published by OSWER on April 29, 1996. To date,
this protection has not been requested by any vendors or primes.
Next Steps: Implementation of this reform is complete.
Contact: Barbara McDonough, OSWER (202) 260-6674
VI. STATE AND TRIBAL EMPOWERMENT
10. VOLUNTARY CLEANUP PROGRAM
Description: EPA has initiated a joint EPA/State/Tribal effort to define roles in
promoting the development and operation of State/Tribal voluntary cleanup programs
which are designed to speed the cleanup of non-NPL sites. In addition, the workgroup
is examining vehicles for the distribution of any financial support EPA may offer to
such programs. Preliminary indications have shown that the States vary in their
preferences. Approximately 30 States have voluntary cleanup programs.
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Status: Congress appropriated $10 million of FY97 funding to support State
Voluntary Cleanup Program infrastructure. EPA will work with States to develop a
mechanism for distribution of this funding. EPA issued a memorandum in November
1996 on an interim approach for Regional relations with State voluntary cleanup
programs. This memorandum sets out baseline criteria that will be considered as part
of the evaluation of a State or Tribe's application for funding the development or
enhancement of a voluntary cleanup program. These criteria will also be discussed as
part of a negotiation of a Memorandum of Agreement (MO A) concerning plans for
division of labor between EPA and States at sites. Prior to issuance of this
memorandum, eight States (Missouri, Michigan, Minnesota, Wisconsin, Illinois, Texas
and Colorado) already signed MO As with their respective Regions concerning how
EPA and the States will work together in addressing voluntary cleanup program sites.
Next Steps: EPA and the States will assess how the MOA process is working and will
seek public comment on and finalize guidance on State voluntary cleanup programs by
theendofFY97.
Contact: Ann McDonough, OSWER, (202) 260-0145.
11. INTEGRATED FEDERAL/STATE/TRIBAL SITE MANAGEMENT PROGRAM
Description: EPA and States are working together to develop a pilot program under
which States, Territories, Commonwealths, and Federally recognized Tribes would
oversee and compel PRP actions at selected NPL-caliber sites. Using knowledge
gained from piloting a program to defer certain cleanups to States at 22 sites in seven
States, EPA plans to fully develop this program as a model for integrated
Federal/State/Tribal site management of NPL-caliber sites. The Agency then will issue
new guidance on State deferral procedures.
Status: On May 2, 1995, EPA issued final guidance on the deferral program. The
deferral program allows EPA to defer from considering listing NPL-caliber sites on the
NPL while States and Tribes initiate and oversee PRP responses. The Agency
originally expected to evaluate the pilots to determine how to improve the guidance to
facilitate greater State empowerment and more effective cleanups.
In addition to implementing the deferral program, EPA Regional Offices worked to
increase State participation through innovative site characterization cooperative
agreements and new funding for Tribes. Since 1994, a total of eight sites have been
formally deferred, while a number of other sites have been informally deferred or are
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under consideration for deferral. Due to the enthusiasm generated for exploring new
options for State and Tribal empowerment, other initiatives have generally overtaken
the opportunity to fully implement the deferral program.
Next Steps: The Agency will continue to implement the deferral program.
Contact: Steve Caldwell, OERR, (703) 603-8833
12. STATE/TRIBAL SUPERFUND BLOCK FUNDING
Description: EPA currently enters into several types of site- and non-site-specific
cooperative agreements with States and Tribes to conduct or assist Superfund response
actions. This can be a cumbersome and time-consuming process. To improve the
timeliness and effectiveness of the cooperative agreement process, the Agency is
working with States and Tribes to identify options and opportunities to consolidate the
Superfund award process through block funding.
Status: EPA has established a 50-member workgroup on block funding which includes
input from 17 States and Tribes. Several States and/or Tribes have expressed an
interest in contributing to efforts to develop a block funding mechanism. Ten states
and one tribe are currently participating in efforts to pilot the block funding concept.
These pilots are in different stages of development. Discussions of successes and
impediments to implementation of the pilots are providing useful experience and
information which will be used in the development of the final report for this reform.
Next Steps: EPA is scheduled to develop a preliminary report documenting obstacles
in the award and utilization of Superfund resources and providing recommendations to
improve the award and utilization of Fund monies to States and Tribes early in FY97.
Contact: Kenneth Fisher, OERR, (703) 603-8764
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