United States
Environmental Protection
Agency
Off ice of
Solid Waste and
Emergency Response
9375.6-11 A ?'
EPA/540/F-95/004
PB95-963225
xvEPA
Superfund
Response to Comments
on the 1988 Proposed NCP
Deferral Policy Concept
-------
Agency
-------
OSWER Directive 9375.6-11A
EPA/540/F-95/004
PB95-963225
RESPONSE TO COMMENTS ON THE
1988 PROPOSED NCP DEFERRAL POLICY CONCEPT
Office of Emergency and Remedial Response
U.S. Environmental Protection Agency
Washington, D.C. 20460
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAY 3 1995
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
9375.6-11A
MEMORANDUM
SUBJECT: Transmittal of the "Response to Comments on the 1988
Proposed NCP Deferral Policy Concept" (OSWER Directive
9375.6-11A)
FROM: Stephen D. Luftig, Acting Director
Office of Emergency and Remedial Response
TO: Director, Waste Management Division
Regions I, IV, V, VII
Director, Emergency and Remedial Response Division
Region II
Director, Hazardous Waste Management Division
Regions III, VI, VIII, IX
Director, Hazardous Waste Division
Region X
Director, Environmental Services Division
Regions I, VI, VII
PURPOSE
This memorandum transmits the Environmental Protection
Agency's "Response to Comments on the 1988 Proposed NCP Deferral
Policy Concept."
BACKGROUND
In 1988, the Environmental Protection Agency (EPA)
introduced a deferral policy concept in the proposed National Oil
and Hazardous Substance Pollution Contingency Plan (NCP) and
requested public comment. When the Agency promulgated the final
NCP in 1990, EPA did not expand its deferral policy, but
committed to respond to comments received on the proposed
concept, if in the future, the Agency decided to expand this
policy.
Recycled/Recyclable • Printed with Vegetable Oil Based Inks on 100% Recycled Paper (40% Postconsumer)
-------
IMPLEMENTATION
EPA is now issuing the "Guidance on Deferral of NPL Listing
Determinations While States Oversee Response Actions" (OSWER
Directive 9375.6-11), which establishes the Superfund State
deferral program. The "Response to Comments on the 1988 Proposed
NCP Deferral Policy Concept" fulfills the Agency's commitment to
respond to the comments received regarding the deferral policy
concept introduced in the 1988 proposed NCP. This document only
addresses comments that refer specifically to EPA's proposal to
expand deferral authorities to States.
For further information regarding the Superfund State
deferral program, contact Murray Newton, Chief of the State and
Local Coordination Branch, Hazardous Site Control Division (703-
603-8840) or Steve Caldwell, Acting Chief of the Site Assessment
Branch, Hazardous Site Evaluation Division (703-603-8860).
Attachment
-------
TABLE OF CONTENTS
INTRODUCTION 1
BACKGROUND 1
COMMENTS AND RESPONSES 2
I. General Concept of Deferring Sites to States . . 2
II. Legal Basis for EPA's Deferral Listing Policy . . 3
III. Deferring Sites Based on Petition and/or
Certification 10
IV. Timing for Deferring Sites 11
V. Deferring Sites Involving Indian Lands, Water, or
Other Resources 12
VI. Cleanup Levels at Deferred Sites 12
VII. Permit Exemptions for Deferred Sites 13
VIII. Notifying Natural Resource Trustees 14
IX. Oversight of State Authorities 14
X. Federal Resources to Implement State Deferral and
Mixed Funding Settlements 15
XI. Stipulating Public Participation Requirements . . 16
XII. ATSDR Health Assessments 17
XIII. Terminating Deferral Status 18
11
-------
RESPONSE TO COMMENTS ON THE
1988 PROPOSED NCP DEFERRAL POLICY CONCEPT
INTRODUCTION
In the preamble to the 1988 proposed National Oil and
Hazardous Substance Pollution Contingency Plan (NCP) for
implementing the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), as amended, the
Environmental Protection Agency (EPA) announced it was
considering expanding the existing policy of deferring sites from
inclusion on the National Priorities List (NPL) (See 53 FR 51418-
19, Dec. 21, 1988). The Agency requested and received public
comments on its proposal to defer sites to other Federal
authorities, States, and/or potentially responsible parties
(PRPs). However, in the 1990 preamble to the final NCP, EPA
stated that it would not decide the issue of deferral at that
time (See 54 FR 8667, Mar. 8, 1990). The Agency noted that,
should EPA "decide in the future to consider establishing an
expansion to deferral policies," it would respond to the comments
received (Id.). Because EPA is issuing the "Guidance on Deferral
of NPL Listing Determinations While States Oversee Response
Actions" (OSWER Directive 9375.6-11), the Agency believes it is
appropriate to address the comments that it received regarding
EPA's proposal to expand its deferral policy to include deferral
to State authorities.
BACKGROUND
The State deferral policy proposed in 1988 described a
program in which EPA would broaden the then-existing deferral
approach to include State corrective action authorities that are
capable of addressing CERCLA releases. In addition to various
other components, the proposed policy presented the following
general two approaches for deferring a site, that was eligible
for listing on the NPL, to a State:
Petition. Under this option, the State would assume total
responsibility for the response at a site using its
authorities. This option did not intend to ensure
equivalence to CERCLA, and minimal EPA oversight would be
required. For EPA to consider deferring a site which was
eligible for listing on the NPL, a State would petition EPA
assuring that it:
— had provided reasonable notice to the public that the
State was seeking deferral;
— would provide for public participation during the remedy
selection process; and
-------
— would hold a public meeting regarding a deferred site, if
requested.
Certification. With this approach, EPA would defer from
listing individual sites on the NPL where the State provided
a more detailed certification of its ability and committed
to perform corrective action according to certain CERCLA
standards. This option would require greater EPA oversight
than the petition option. Under this option, a State would
certify that it:
— had sufficient regulatory response and enforcement
authorities;
— had sufficient State personnel and funds to address the
site;
— had a satisfactory schedule to address the site;
— was committed to provide status reports to EPA and the
public;
— would include public participation in the remedy
selection process; and
— was committed to select a remedy consistent with CERCLA
Section 121.
The Agency requested comments from the public on these two
options as well as on the general concept of deferring to State
authorities. EPA also specifically requested comments on the
cleanup levels that should be required at deferred sites, the
timing for deferring sites, and public notification procedures at
deferred sites.
EPA is now issuing the "Guidance on Deferral of NPL Listing
Determinations While States Oversee Response Actions," which
establishes the Superfund State deferral program. The following
responses fulfill EPA's commitment to respond to the comments
received on the 1988 proposed deferral policy, but only comments
that refer specifically to EPA's proposal to expand deferral
authorities to States are addressed. Major comments are
summarized by subject, and responses reflect EPA policy as
presented in the guidance. Throughout this document, the term
"State" refers to States, Territories, Commonwealths, or
Federally-recognized Indian Tribes who may be eligible to
participate in the deferral program.
COMMENTS AND RESPONSES
I. General Concept of Deferring Sites to States
EPA received 77 written comments on the 1988 proposed policy
from industry and trade associations (37), Federal, State, local,
and Tribal governments (29), environmental and citizen groups
(7), and individuals (4) regarding deferral to State authorities.
-------
Over rcent of the comments generally supported the proposed
State =rral policy, while roughly 15 percent generally opposed
the p . The remainder neither supported nor opposed the
propc aolicy.
rally, the supporters of the proposed policy believed
that rring sites to State authorities would provide an
effec way to expedite the remedial process and maximize the
numbc sites addressed. Many commenters believed that
defe] -/ould save Superfund resources and reduce duplicative
effoi / both the State and EPA. A further advantage offered
by dc il supporters was that a deferral policy would provide
State :h greater leverage in PRP negotiations because deferral
coulc >r PRPs a faster and less costly cleanup process,
reduc 'ersight costs, and freedom from two different sources
of .-« ory control.
ineral, commenters who opposed the deferral policy did
so fc . following reasons: 1) deferral was not legally
suppo 2) efforts to remediate sites under State laws would
not b effective as responses under CERCLA; 3) public
parti ion would suffer under the direction of various States;
and 4 oversight would be inadequate for any deferral
progr
nse. In the June 23, 1994, "Superfund Administrative
Impro rs, Final Report," EPA stated its intention to develop
a aef program that would "reduce the number of sites now in
EP.- fs ing queue, thereby accelerating cleanup, minimizing the
risK plicative State/Federal efforts, and offering PRPs a
measu confidence that only one agency will address the
sire. .is goal is consistent with the deferral policy proposed
in 19 nd the Agency believes that implementation of the
de ?r; uidance will have this impact. Comments expressing
cor _s out the deferral policy proposed in 1988 will be
adc :e in the following comment sections.
II. gal Basis for EPA's Deferral Listing Policy
al of 23 commenters specifically agreed or disagreed
witn " assertion that the proposed deferral policy is
consit with CERCLA and legislative intent. Nineteen
comme: agreed that the policy is consistent with
congr- lal intent. Four commenters disagreed with EPA's
inter" ;ion of legislative intent and argued that the policy
is il based upon their interpretation of CERCLA Section
105(a ,) that the NPL must be based solely on the Hazard
Panki -tern (HRS) and risk-associated factors, statements by
sngr i during the passage of CERCLA and the Superfund Act
; aaut tion Amendments of 1986 (SARA), and the defeat of
-------
Reagan administration amendments to CERCLA that would have
enacted a similar deferral policy.
Eighteen industry/trade association commenters and one local
government agreed with EPA that the proposed deferral policy was
consistent with CERCLA and legislative intent. Eleven of these
commenters repeated one or all the arguments for this
interpretation that EPA provided in the preamble. Seven
commenters provided additional justifications. Four commenters
referenced Eagle Picher v. EPA. 759 F. 2d. 922, 934 (B.C. Cir.
1985) or City of Stouahton v. EPA. 858 F 2d. 747 (D.C. Cir.
1988), asserting that Congress gave EPA broad discretion in
determining whether to list a site on the NPL. Two commenters
cited statements by Representative Florio and Senator Randolph
during floor debates in 1980 stressing that CERCLA was enacted in
response to the lack of statutory authority that existed before
1980 to remediate uncontrolled hazardous waste sites. They
concluded that the Superfund program was designed strictly to
"provide cleanup funds and enforcement authority for sites that
cannot be addressed under other authorities." These two
commenters also noted that in the years since CERCLA was enacted
many Federal and State corrective action programs have been
developed to close the regulatory gaps that existed before
CERCLA.
One commenter noted that CERCLA Section 105 calls for
selection of sites "which pose substantial danger" [CERCLA
Section 105(a)(8)(A)], "taking into account the potential urgency
of the action" [CERCLA Section 105(a)(8)(A)]. This commenter
asserted, therefore, that sites that do not pose "substantial
danger," because they are adequately addressed under other
authorities, can be deferred, in complete accordance with CERCLA.
Three commenters also pointed out that the funding and
cleanup schedules Congress developed for Superfund would cover
only a small portion of all potential hazardous waste sites,
indicating that Congress intended EPA to establish priorities.
Expansion of the deferral policy is a "rational and necessary
approach to establishing priorities," said one commenter, while
another said that deferral will best achieve the SARA cleanup
schedule without depleting Superfund. In addition, two
commenters argued that the fact that Congress did not
specifically amend CERCLA Section 105(a)(8)(A) through SARA to
limit deferral, even after EPA expressed its intent to establish
a deferral policy (in a 1984 OSWER "Effectiveness of the
Superfund Program" report), is an indication that Congress did
not intend to limit deferral. One commenter also noted that
deferral is consistent with the intent of SARA Section 121(f) to
increase State participation in the remediation process.
Three environmental and citizen groups and one State
asserted that the proposed deferral policy would be illegal based
-------
on statutory language and legislative history. Two commenters
held that CERCLA's national priority system was intended to be
based solely on relative risk, citing a 1980 Senate report on the
enactment of CERCLA (S. Rep. No. 96-848, 96th Cong., 2nd Sess. 60
(1980).
These commenters argued that, under principles of statutory
construction, the term "other appropriate factors," when
following a listing (such as that in Section 105(a)(8)(A) for the
HRS), should apply only to things of the same general kind or
class as specifically mentioned. Since only risk factors are
mentioned in Section 105(a)(8)(A) (with the exception of "State
preparedness to assume costs," which the commenters argued is not
relevant for reasons stated below), EPA could not interpret the
term "other appropriate factors" to apply to non-risk factors.
The commenters also suggested that this interpretation is
supported further by congressional action under SARA. Congress
added two "appropriate factors" to the HRS under SARA, both of
which were risk based. In the commenters1 view, including a non-
risk-based factor, and allowing that factor to overrule all other
risk-based factors is a direct contradiction to CERCLA Section
105(a)(8)(A).
Commenters also argued that the factor of State preparedness
to assume costs and responsibilities was included as an incentive
for States to assume the roles and responsibilities set forth in
the rule as a prerequisite to remedial action, not as a prelude
to deferring sites to States with sufficient funds available. In
support of this view, the commenters cite the Senate Report on
S.51, which states that the "requirement that the State first
agree to assume its responsibilities . . . before remedial
actions begin ..." serves two purposes. First, it allows
States to halt further Federal action until there is agreement
over priority and extent of the remedy; second it better assures
the public that adequate arrangements have been maintained to
accomplish the remedy and maintain its effectiveness over time.
Senate Report 96-848, 98th Congress, 2d. Sess. 57 (1980).
In addition, EP^'s broad construction of the "other
appropriate factors" criteria to allow deferral to States would
nullify other criticsi provisions of CERCLA, and thus would be
illegal. Provisions cited by commenters include Section 105(c)
which directs EPA to assure that the HRS accurately assesses the
"relative degree of risk to human health and the environment"
posed by sites subject to review. By considering other factors
not related to risk, EPA's deferral policy would render Section
105(c) meaningless. Other CERCLA provisions mentioned as being
written out of the law by the deferral policy include Sections
.122 (settlements), 117 (public participation), 117(e) (technical
assistance grants), and 121 (cleanup standards).
-------
Two commenters cited a 1985 House Public Works Committee
report that asserts that "Superfund incorporated under one
Federal law a program for responding to releases of hazardous
substances into the environment." SARA did not change the focus
or scope of the program, as evidenced by the defeat of an
amendment to the 1986 CERCLA reauthorization bill, proposed by
the Reagan administration, calling for other Federally permitted
sites to be excluded from CERCLA authority. Congress did support
excluding naturally occurring releases from CERCLA, but
specifically opposed excluding sites that can be remediated under
other Federal authorities, according to three commenters.
One commenter also addressed the issue of the ability of
Superfund to respond to all potential sites. This commenter
agreed with EPA that Congress understood the enormity of the
problem to be addressed by Superfund, but asserted that Congress
responded to this problem by strengthening Superfund through
SARA. Congress expected the SARA provisions to allow Superfund
to address all of the worst hazardous waste sites, and did not
anticipate or favor reduction of the Superfund agenda through
deferral.
Two commenters also pointed out that the passage that EPA
cites from the 1987 House Appropriations Committee report, as
evidence of legislative approval of deferral, is concerned with
the use of Fund money, and does not refer to the listing of sites
on the NPL. The commenters also stressed that the report raises
questions about the effectiveness of deferral to Resource
Conservation and Recovery Act of 1976 (RCRA) corrective action
authorities, and calls on EPA to "examine the full universe of
hazardous waste sites and develop methods to ensure that the
tools available under Superfund are put to full use to clean up
the most serious cases" [HR Rep. No. 100-189, 100th Cong., 1st
Sess. 28 (1987)].
Response. In the preamble to the proposed NCP, EPA
determined that a program of deferral to States is within its
discretion under CERCLA. See 53 F.R. 51415-16. That analysis
supports the Agency's adoption of the policy for deferring sites
to States being issued along with these responses to comments.
In summary, CERCLA only requires the listing of priorities
"among" the known releases and not a listing of all releases.
EPA is, thus, not obligated to list all releases or threatened
releases of hazardous substances, pollutants, or contaminants.
The "overriding principle of the legislation [is] that Superfund
should be reserved for the most serious sites not otherwise being
addressed." 53 F.R. 51416 (emphasis added), citing H.Rep. 189,
100th Cong., 1st Sess. 27-28(1987). The interpretation that EPA
has broad discretion with respect to NPL listing is supported by
the criteria to be considered under CERCLA Section 105(a)(8)(A),
which include relative risks, State preparedness to assume State
costs and responsibilities, and "other relevant factors."
-------
Further, in writing the statute, Congress was concerned that
Superfund be operated to produce maximum environmental benefit
for the investment.
EPA agrees with the comments of those who support the
legality of deferral to the extent the commenters support the
general view that CERCLA gives the Agency broad discretion in
that area.
In addition, EPA notes that the deferral program is
consistent with the discretion authorized under the NCP, in
particular that part known as the "national hazardous substance
response plan," which as required under CERCLA Section 105(a) is
to "establish procedures and standards for responding to releases
of hazardous substances, pollutants and contaminants, . . . ."
The two NCP subparts of the national hazardous substance
response plan relevant to State deferral for NPL listing are
Subparts E and F. NPL listing is discussed in Subpart E of the
NCP — Hazardous Substance Response (40 CFR 300.400 through
300.440). Subpart F (40 CFR 300.500 through 300.525) is titled
"State Involvement in Hazardous Substance Response."
Section 300.400(i)(3) states that "activities by the Federal
and State governments in implementing this subpart [Subpart E]
are discretionary governmental functions." These activities
include listing on the NPL. Section 300.425(c) further
emphasizes the discretionary nature of the NPL listing process by
providing that EPA "may" list a release if it meets one of the
following three criteria: 1) a sufficiently high Hazard Ranking
System (HRS) score, 2) State designation, and 3) a health
advisory issued by the Agency for Toxic Substances and Disease
Registry (ATSDR) recommending dissociation of individuals from
the release. EPA is not obligated to list a release even if it
meets one of the three criteria. Before listing using the ATSDR
advisory, EPA must find that the release poses a significant
threat, and that it is more cost effective to use remedial rather
than removal authority under CERCLA.
Under Subpart F on State involvement, EPA "shall ensure
meaningful and substantial State involvement in hazardous
substance response." (40 CFR 300.500(a)). Such involvement
means any of the activities described in Subpart E, including NPL
listing and, by implication, decisions to defer listing. While
criteria established in Subpart F are generally for actions under
CERCLA (see Proposed NCP at 53 FR 51418) — in particular, State
assurances for Fund-financed actions (40 CFR 300.510) and
requirements for State involvement in CERCLA remedial and
enforcement response (40 CFR 300.515) — Subpart F also provides
that States are to be involved in NPL listing activities under
both general agreements (40 CFR 300.505(d)(2)(ii)) and in
specific listing decisions (40 CFR 300.515(c)).
-------
EPA also is encouraged under Subpart F to enter into
Superfund Memoranda of Agreement (SMOAs) (40 CFR 300.500(a)).
These SMOAs, incidentally, are recommended as an important
implementing tool for State deferrals under the final policy
being issued. SMOAs deal with the entire range of response
activities (See 40 CFR 300.505(a)(1), (a)(3) and (d)(l)).
Further, even if EPA does not have a SMOA with a State, the
Agency still may initiate and document SMOA-like activities in
the absence of a SMOA. See 40 CFR 505(d)(2).
For reasons stated in the December 1988 preamble to the
proposed NCP, the deferral policy, and in the various comment
responses in this document, the Agency believes its new State
deferral policy is both within its discretion under CERCLA and
meets the goals of the statute, as well as the goals of Subparts
E and F. The reasoning supporting the deferral policy, in
summary, allows the Agency to establish priorities rationally
among the known releases of hazardous substances, taking into
account meaningful and substantial State involvement.
EPA disagrees with the comments that State deferral is not
authorized by CERCLA Section 105 because it is a not a "risk-
based" factor. First, assuming State willingness to undertake
cleanup responsibilities is not "risk-based," CERCLA Section
105(a)(8)(A) could be construed explicitly to recognize at least
one "non-risk-based11 factor, in particular, "... State
preparedness to assume State costs and responsibilities." Thus,
"other appropriate factors" that are "non-risk-based" certainly
could be relevant to an NPL listing determination.
Section 105(a)(8)(A), furthermore, does not state how the
"State preparedness" criterion is to be used, or what constitutes
"State costs and responsibilities." It would not preclude EPA
from deciding that, if a State was willing to assume full
responsibility for a release, the release should not be
considered a national priority.
The legislative history cited by the commenters regarding
State preparedness to assume costs and responsibilities even
indicates that one purpose of this criterion is to allow States
"to halt [emphasis added] further Federal response actions until
disagreements over priority and the extent of the remedy are
agreed upon" [Senate Report 96-848, 98th Congress, 2d. Sess. 57
(1980)]. This statement actually refers to the provisions of
CERCLA Section 104(c)(3) that deals with performance of remedial
actions. This legislative history, therefore, may not have any
relevance to NPL listing. NPL listing occurs at a preliminary
phase, and does not mean that a remedial action will take place
at the site. However, it is clear that a provision that requires
Federal action to be dependent on consideration of State
willingness to assume costs of that action could lead to deferral
of the Federal action (or possibly a halt to that action).
8
-------
In any event, EPA disagrees that State deferral is not a
"risk-based" factor. As noted above, legislative history
indicates that CERCLA should be reserved for the most serious
sites not otherwise being addressed. If a State is willing to
oversee the response at a site, the need to designate the site as
a national priority may be lessened, because the "relative risk"
of the site, or its "danger to public health or welfare," is
reduced as compared to other sites not otherwise being addressed.
Furthermore, the deferral policy affects EPA's ability to
allocate Superfund resources, which may also be considered a
"risk-based" factor. Because States will oversee the response
actions at deferred sites, EPA will be able to focus Superfund
resources at sites not otherwise being addressed, thereby
reducing the risks which these sites present. Inability to use
Federal monies at these other sites actually could increase risk.
EPA also disagrees with the comments that claim the deferral
policy would render meaningless, or "write out" of the law, any
provision of CERCLA. State deferral does not render meaningless
the Section 105(c) directive that assures that the HRS accurately
assesses the "relative degree of risk to human health and the
environment." Relative risk is, of course, a factor to consider
in listing a facility on the NPL but, as noted above, the statute
requires the Agency to list national priorities "among" known
releases. The regulations do not obligate EPA to list all
facilities that could score "sufficiently" under the HRS.
With respect to other provisions mentioned by commenters as
being written out of the law by the deferral policy, EPA simply
states that any State deferral policy could not cover all sites.
Those sites that fall directly under CERCLA requirements will
still be subject to any of the provisions to which the commenters
refer.
Rejection of legislative proposals under the Reagan
administration to exclude from CERCLA those sites regulated under
other Federal authorities does not support the view that State
deferral is not authorized. First, these proposals did not refer
to States. Moreover, the fact that Federally permitted sites (or
even State controlled sites) are not excluded by law does not
eliminate EPA's discretion to defer to other Federal authorities,
or States as a matter of policy so long as CERCLA does not
explicitly prevent the deferral.
Finally, the remainder of the legislative history citations
submitted by commenters who oppose State deferral are general
statements that CERCLA is meant as a tool to clean up the most
risky sites. Commenters cited no dispositive statement that
relates to State deferral. Because CERCLA and the NCP provide
broad discretion for dealing with NPL listing, it would be
incongruous to use these legislative history arguments to narrow
Agency discretion.
-------
III. Deferring Sites Based on Petition and/or Certification
Of the 39 comments received regarding the petition option
for deferring sites, virtually all preferred this option or
supported the availability of both the petition and the
certification options. Supporters generally agreed that the
petition option would ease the deferral process by imposing the
least amount of procedural burden on the State, allowing the
State flexibility in cleaning up sites, and maximizing the number
of sites States would be able to address. Although general
support for the petition option nearly was unanimous among
commenters, several revisions were recommended. Commenters
suggested that States should have: the legal authorities to
clean up sites; goals consistent with CERCLA; programs that can
address deferred sites; and responses that are consistent with
the NCP. In addition, commenters recommended that States submit
annual progress reports to EPA; that greater discourse occur
between the Regional Office and State to identify deferral
candidates; and that EPA conduct active oversight.
Most of the 25 commenters who addressed the certification
option either opposed this option or supported the availability
of both options. Commenters who did not support certification
generally argued that the approach contained too many
requirements. They suggested that certification would be costly
to meet, would be overly burdensome to States, and would not
relieve duplication of effort by EPA and States. Those who
supported certification or both options suggested modifications
to the certification approach that would allow more flexibility
in regard to conforming to CERCLA procedures and oversight
requirements. One commenter was opposed to any option that
required deferral on a site-specific basis, arguing that such an
approach would be highly duplicative and would require
additional, unnecessary resources.
Response. Under the Superfund State deferral program, EPA
has combined both approaches proposed in 1988 and expects that
the deferral program will not be burdensome. States have the
opportunity to participate in the deferral program on an "area-
wide" or site-specific basis. Under the area-wide approach, an
EPA Regional Office and a State will agree that the State program
is capable to address deferred sites, based on several criteria.
The State will need to demonstrate that it has: provisions
assuring that CERCLA-protective remedies are selected; legal
authority to pursue enforcement actions; and expertise and
resources to conduct enforcement, monitoring, oversight, and
community involvement activities.
Under the site-specific approach, a State that does not meet
all of the criteria for implementing the program on an area-wide
basis may enter into agreements for site-specific deferrals.
10
-------
Under either approach, sites themselves must meet specific
criteria to be eligible for deferral, and States must assure to
implement CERCLA-protective remedies and provide for appropriate
public involvement. The Regional Office and each interested
State will mutually determine, generally based on an annual
submission of deferral site candidates proposed by the State,
which sites should be deferred. Furthermore, the Regional Office
will meet with a State, at least annually, to assure progress is
being made at deferred sites and may make arrangements for
additional oversight as provided for in agreements with the
State.
IV. Timing for Deferring Sites
The proposed NCP described two approaches for deciding when
EPA should defer potential NPL sites to States: 1) before NPL
proposal; or 2) after NPL proposal but before final listing.
Under the proposed policy of 1988, EPA would employ one or both
of these options for managing deferred sites and requested
comment on the issue.
Of 22 comments received related to timing for deferring
sites, a large majority (including five States) supported the
first option because: 1) it offered an incentive for PRPs to
initiate early discussions with the State; 2) it did not require
Agency for Toxic Substances and Disease Registry (ATSDR) health
assessments; and 3) it conserved EPA resources that would
otherwise be used for proposing the site on the NPL.
The few commenters (including four States) supporting the
second option argued that deferral after listing: 1) defines
eligibility for the NPL in the event of deferral termination; 2)
assures public involvement; 3) provides for ATSDR health
assessments; and 4) allows affected communities to be eligible
for technical assistance grants (TAGs).
Response. Under the deferral guidance, a site is eligible
for deferral until an assignment to develop the site-specific
Hazard Ranking System (HRS) scoring package has been tasked.
Where development of an HRS package has been initiated, a State
must provide a compelling argument why the listing process should
be halted. Sites listed on the final NPL are not eligible for
deferral.
The Agency believes that this cut-off for deferral
eligibility is appropriate because it provides an incentive to
PRPs to enter into early negotiations with States to defer sites,
thereby encouraging more timely responses. The deferral program
is not intended to coerce uncooperative PRPs to conduct cleanups,
but to encourage interested PRPs to expedite response actions
under State authority. Additionally, restricting eligibility
11
-------
prior to submission of an HRS scoring package to Headquarters
allows EPA to conserve and redirect Superfund resources to other
sites that are not deferred.
With respect to comments in support of the first option, EPA
expects that site assessments will be completed at most deferred
sites before a response action is taken. These assessments will
ensure that the Agency will have the basic information necessary
to determine eligibility for scoring on the NPL in case the
deferral status of a site is terminated. EPA acknowledges that,
while ATSDR health assessments will not be required at deferred
sites, site-specific ATSDR assistance is available to communities
and States upon request. Although TAGs may not be awarded to
communities at deferred sites, the Agency believes that the
guidance has effective provisions to assure that a State provides
for appropriate public participation at deferred sites (these are
described in the section on "Stipulating Public Participation
Requirements).
V. Deferring Sites Involving Indian Lands/ Water/ or Other
Resources
Three commenters (Tribal governments) strongly protested
deferring to State authorities any site involving Indian lands or
other resources. They argued that EPA's deferral of such sites
to States would "violate the Agency's fiduciary responsibilities
to Indian Tribes by ... allowing State cleanup without CERCLA
cleanup criteria or requirements for public participation." The
commenters suggested that if a deferral policy is adopted, EPA
should develop a screening mechanism to ensure that such sites
are not deferred from listing on the NPL.
Response. EPA agrees that the deferral program should
respect Tribal interests at any site that is on or involves
Indian lands or other resources. The Agency also believes that
Indian Tribes should have the opportunity to participate in the
deferral program as appropriate. The guidance specifies that EPA
may defer a site on or involving Indian lands or other resources
to a Federally-recognized Tribe provided that other guidance
criteria are met. The guidance prohibits deferral of such a site
to a State unless the affected Tribe(s) agrees to the deferral
through a three-party agreement with the State and EPA.
VI. Cleanup Levels at Deferred sites
Twenty-two commenters addressed the issue of requiring
States to meet CERCLA standards at deferred sites. Nine of the
commenters supported requiring CERCLA standards to be met at all
potential NPL sites. These commenters generally agreed that
remedial actions undertaken by States should at least meet the
12
-------
quality of cleanup required under CERCLA. Other commenters
encouraged the deferral program to embrace the principle of
attaining applicable or relevant and appropriate requirements
(ARARs) to the fullest extent practicable. One commenter
supported developing a test for State equivalency with Superfund
to assure PRPs conducting cleanups that deferrals would be
carried out in conformance with CERCLA objectives, thus
eliminating the possibility of Federal intervention at deferred
sites.
Eight commenters opposed the application of CERCLA cleanup
standards, generally arguing that the appropriate level of
remediation is that which is provided by the applicable State
authority so long as it is protective of human health and the
environment. Three commenters opposing the application of CERCLA
cleanup standards also argued that required conformance to CERCLA
standards would to some degree defeat the purpose of the deferral
policy and substantially reduce the number of sites deferred.
Five commenters opposed the deferral concept arguing that
deferral to States would lead to many inadequate cleanups and
undermine CERCLA objectives of providing for standardized and
permanent cleanups.
Response. The Agency believes that the quality of response
actions at deferred sites should be substantially similar to
response actions required under CERCLA. Although States will
oversee response actions using their own authorities under the
deferral program, they will be required to conduct "CERCLA-
protective cleanups" at all deferred sites. The guidance defines
a CERCLA-protective cleanup as a response that is protective of
human health and the environment, generally defined by a 10"4 to
10~6 risk range and a hazard index of one or less. Remedies
selected at deferred sites also must comply with all applicable
State and Federal requirements and should provide a level of
protectiveness comparable to relevant and appropriate Federal
requirements. In addition to these requirements regarding
cleanup levels, the deferral program contains other safeguards,
including State capability criteria and provisions for public
involvement, EPA oversight, and deferral termination. The Agency
believes that these safeguards will ensure that response actions
at deferred sites will be CERCLA-protective.
VII. Permit Exemptions for Deferred Sites
Sites addressed under the authority of CERCLA are exempt
from obtaining permits for activities conducted on-site. Five
commenters suggested that permit exemption privileges also should
be available at deferred sites.
13
-------
Response. The Agency has determined that CERCLA does not
authorize permit exemptions for response actions carried out
under the deferral program. CERCLA exempts on-site remedial
action that is selected and carried out in compliance with CERCLA
Section 121 from Federal, State and local permit requirements.
Deferral response actions, however, will be conducted under State
authority and therefore cannot use the exemption provision.
Viii. Notifying Natural Resource Trustees
Two commenters expressed concern that natural resource
trustees may not be alerted to potential injuries to the natural
resources that they are designated to protect at sites that are
not placed on the NPL.
Response. EPA affirms that Federal and State trustee
involvement is critical to assure that injured natural resources
are restored or replaced under CERCLA's natural resource damage
provisions. Therefore, at every deferred site, the deferral
guidance requires a State to notify the appropriate State and
Federal natural resource trustees of discharges or releases that
may injure natural resources related to a deferred site, and
include the trustees, as appropriate, in PRP negotiations.
IX. Oversight of State Authorities
Under the proposed policy, EPA oversight would vary
depending upon whether the certification or petition option for
deferring sites was chosen. Under the State certification
option, considerable EPA oversight would be required to review
documentation of State capabilities and monitor cleanup progress.
Less oversight would be required under the State petition option.
Among eight commenters who addressed the issue of EPA
oversight, six commenters supported deferral generally, but
differed in their support for EPA oversight. While two of the
six respondents supporting deferral agreed that EPA must maintain
an active oversight role to ensure timely, consistent, and
protective response actions, the others argued for minimal CERCLA
oversight. One of the six commenters suggested that once a site
is deferred to an approved State program, the State should be
assumed capable of ensuring adequate remedial responses. Two
commenters opposed deferral altogether and generally argued that
deferral of any kind would reduce or eliminate EPA's role in
overseeing cleanup decisions. Thus, deferral would undermine
Congress1 goal of a coordinated national cleanup policy.
Response. An important objective of the deferral program is
to reduce duplication of effort and clearly identify one agency
who will be responsible for a site. The Agency believes that
14
-------
once a site is deferred to a State and the necessary requirements
have been met, the State, with minimal EPA involvement, has
responsibility to provide for a timely and CERCLA-protective
cleanup. The State also has the responsibility to support the
public's right of participation in the decision-making process at
deferred sites.
To ensure that these responsibilities are met, EPA has
developed several criteria for determining State capability. The
guidance requires EPA Regional Offices and States to enter into
agreements that clearly identify and distinguish roles,
responsibilities, and schedules for implementing response actions
at deferred sites. In addition, States and Regional Offices will
meet and review specific site progress at least annually.
However, EPA also recognizes that site conditions and State
capabilities vary. Therefore the deferral guidance allows
flexibility for Regional Offices and States to develop area-wide
or site-specific agreements that accommodate differing needs for
oversight. The Agency believes that implementation of the
guidance will provide for a coordinated national cleanup policy,
while not encumbering the program with requirements that may
impede its effectiveness and efficiency.
X. Federal Resources to Implement state Deferral and Mixed
Funding Settlements
Under the 1988 proposed deferral policy, CERCLA funding
would not be available for State management and oversight at
sites deferred prior to proposal on the NPL. Six commenters
expressed concern that States may not be interested in seeking
the deferral of sites to State authority without receiving CERCLA
funding. Four commenters supported the provision of limited
CERCLA funding to facilitate State oversight of deferred sites.
Two other respondents suggested that, as incentives for State
participation, permit exemptions currently limited to CERCLA
actions should be extended to include deferrals to States (see
the section on "Permit Exemptions for Deferred Sites").
Additionally, the proposed policy did not make mixed funding
available for sites that are deferred prior to proposal on the
NPL. Of eight commenters addressing this issue, five stated that
EPA should consider allowing mixed funding settlements for all
sites that are deferred prior to proposal on the NPL. Three
commenters stated that deferral would not preclude mixed funding
settlements from being conducted under State law.
Response. A fundamental expectation of the deferral program
is that viable PRPs will reach settlements with States to respond
to deferred sites. A site that does not have viable PRPs who are
willing to provide for a full response action should not be
eligible for deferral unless the State has other non-Federal
15
-------
sources of funding for the response. However, EPA recognizes
that under certain circumstances, provision of limited funding to
a State to assist in its implementation of the deferral program
may be needed. The guidance allows a Regional Office to award,
through cooperative agreements, site-specific funds to a State to
conduct enforcement and oversight-related activities or non-site-
specific funds to improve its overall capability to implement the
program. EPA also may provide deferral-specific funding for site
assessments where such assessments have not been conducted and
removal funding, as appropriate, when PRPs become recalcitrant or
bankrupt.
In response to comments regarding mixed funding settlements,
EPA reiterates its position not to allow Federal Trust Fund
resources to be used for response actions at deferred sites; thus
EPA will not enter into such agreements to allow for mixed
funding using Federal resources. However, EPA agrees that the
deferral program does not preclude a State from using its own
authority and resources to enter into agreements where the State
and PRPs share the costs of response at a deferred site.
XI. Stipulating Public Participation Requirements
The proposed policy required States to notify the public of
a deferral and to conduct public participation activities during
the remedy selection process at a deferred site. Technical
Assistance Grants (TAGs) would only be available at deferred
sites that had been proposed for NPL listing.
Twelve commenters specifically addressed the issue of public
participation requirements. Seven of these commenters supported
deferral generally: three commenters supported the proposed
public participation requirements; three argued for greater
assurance that States provide for public involvement; and one
remarked that public participation requirements should not be
required at sites that have not been placed on the NPL. Five
commenters opposed any deferral policy because States could not
guarantee the same level of public participation as mandated in
the Superfund Amendments Reauthorization Act (SARA), especially
without support from TAGs.
Fifteen commenters specifically addressed the availability
of TAGs at deferred sites: five supported a policy to defer
sites proposed to the NPL, which would make TAGs available at
those sites; six opposed any deferral policy that did not allow
TAGs to be made available; two advocated the development of
State-funded grant programs similar to the TAG program; and one
suggested that EPA make other forms of funding available to
communities. All the commenters were concerned that the deferral
policy ensure public participation in the remedial process.
16
-------
Response. EPA regards community involvement as a critical
component of response actions at deferred sites and believes that
States that are committed to public involvement can achieve an
impact similar to that desired under the NCP. To that end, the
deferral guidance requires States to have the capability and
commitment to involve communities at deferred sites; requires
States to notify affected communities of proposed deferrals; and
incorporates community acceptance as a criterion for deferral.
Once a site has been deferred, the guidance requires the State to
ensure that the impact of the State's efforts to involve the
public will be substantially similar to the intended effect of
implementing the NCP public involvement requirements. Finally,
the guidance instructs Regional Offices to consider community
concerns regarding termination of the deferral status of a site.
While EPA does not have authority to provide TAGs to
communities at deferred sites, because they have not been
proposed to the NPL, under the deferral program, States should
provide resources or direct assistance to affected communities at
deferred sites, as appropriate. To acquire resources or
assistance for communities, the guidance also encourages a State
to seek funding from the PRPs at a site if the State cannot
provide funding to a community itself. EPA believes that with
these multiple safeguards, public involvement will be adequately
provided for at sites that are deferred.
XII. ATSDR Health Assessments
Of 18 commenters who addressed the issue of health
assessments, nine favored having ATSDR health assessments
performed at deferred sites. Three commenters stated that health
assessments at deferred sites should not be required. Not having
this requirement would allow CERCLA funds and resources to be
redirected to sites at which no other authority expects to take a
response action. Six commenters opposed any deferral policy that
would not require health assessments.
Response. ATSDR health assessments will not be required at
deferred sites because such sites will not be proposed or final
on the NPL. However, upon petitioning ATSDR, a health assessment
or consultation may be conducted at any site. Additionally,
under the Superfund Accelerated Cleanup Model (SACM), EPA
supports earlier use of ATSDR health assessments or consultations
to accelerate responses. As a result, the Agency expects that
health assessments and consultations will be conducted more
frequently at non-NPL sites, including deferred sites.
17
-------
XIII. Terminating Deferral Status
Under the proposed policy, EPA reserved the right to
terminate the deferred status of a site and take the necessary
procedural steps to list the site on the NPL when the Agency
determined the termination was necessary. Most of the 19
commenters on this issue supported EPA's right to terminate the
deferral status of a site. However, these respondents commented
on how to determine whether a deferral should be terminated.
Comments included the following suggestions: terminate only with
State concurrence; terminate only at the national level to
promote national consistency; and terminate when negotiations
with PRPs break down. One commenter suggested that terminated
sites should be placed on the NPL automatically, while another
urged that NPL listing should only occur if the site scores high
enough on the HRS system. Two commenters also argued that EPA
should establish definite procedures for terminating a site's
deferred status and propose these procedures in the Federal
Register and/or include them in the NCP.
A few commenters expressed concern about EPA terminating
deferrals, noting that termination would result in duplicative
use of resources. These commenters believed that PRPs would be
extremely reluctant to enter into negotiations if they knew that
the site would be deferred to an inadequate authority, only later
to be returned to the CERCLA program.
Response. Under the deferral guidance, the Agency continues
to preserve its right to terminate the deferral status of a site
at any time and proceed with necessary response action and
consideration for listing on the NPL. Because Regional Offices
will be responsible for entering into agreements with States and
for conducting oversight, they will have the discretion to
determine whether the deferral status of a site should be
terminated.
If a Regional Office determines, at any time, that the
response at a deferred site is not CERCLA-protective, is
unreasonably delayed or inappropriate, does not adequately
address community concerns, or if the State is otherwise unable
to compel or conduct a response action, the Regional Office may
terminate the deferral status of the site. While the Regional
Office must provide 30 days' notice and consult with the State
before terminating a deferral, State concurrence with the
termination is not required. States also may choose to terminate
the deferred status of a site for any reason after 30 days'
notice to the Regional Office.
Upon terminating a site's deferral status, the guidance
instructs a Regional Office to consider immediately taking any
necessary response actions and initiate consideration of the site
for NPL listing. The site will not be automatically eligible for
18
-------
U.S. Environmental Protection Agat.c.y
Region 5, Library (PL-12-^
li 'West Jackson Bou'evard, 12th Floor
Chicago, \L 60604-3590
-------
NPL listing, but the Agency believes that these actions will
assure the public that EPA will continue to respond at sites
where response actions have begun and will encourage PRPs to
forge successful agreements with States.
19
------- |