UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
March 6, 2003 OSWER Directive 9230.0-107
MEMORANDUM
SUBJECT: Regional Determinations Regarding Which Sites are Not "Eligible Response Sites"
under CERCLA Section 101 (4l)(C)(i), as Added By the Small Business Liability
Relief and Brownfields Revitalization Ac1_ ^ ^
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FROM: Susan E. Bromm, Director f^UN*^
Office of Site Remediation Enforcemen
Mike Cook, Din
Office of Emerg<
Linda Garczynski,
Office of Brownfields Cleanup and Redevelopment
TO: Director, Office of Site Remediation and Restoration, Region I
Director, Emergency and Remedial Response Division, Region II
Director, Hazardous Site Cleanup Division, Region III
Director, Waste Management Division, Region IV
Directors, Superfund Division, Regions V, VI, VII and IX
Assistant Regional Administrator, Office of Ecosystems Protection and
Remediation, Region VIII
Director, Office of Environmental Cleanup, Region X
Director, Office of Environmental Stewardship, Region I
Director, Environmental Accountability Division, Region IV
Regional Counsel, Regions II, III, V, VI, VII, IX, and X
Assistant Regional Administrator, Office of Enforcement, Compliance, and
Environmental Justice, Region VIII
I. Introduction
The Small Business Liability Relief and Brownfields Revitalization Act, Public Law No.
107-118, amends the Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), 42 U.S.C. §§ 9601-9675. The amendments to CERCLA include a new definition of
"eligible response site" in section 101(41). This memorandum provides guidance to the Regions
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on implementing authorities to determine whether a site should be excluded from being an
"eligible response site" under section 101(41)(C)(i).
This memorandum is divided into four parts. Part II provides background on the
definition of an eligible response site, the determinations the Regions will make in respect to this
definition, and the implications of those determinations. Part HI of this memorandum provides
guidance to the Regions for making these determinations in conjunction with future site
assessment decisions (see also the flowchart provided in Attachment A). Part IV of this
memorandum provides guidance to the Regions on making a single determination for sites with
past site assessment decisions.
This policy and any internal procedures adopted for its implementation are intended
exclusively as guidance for employees of the U.S. Government. This policy is not a rule and does
not create any legal obligations. Whether and how the United States applies the policy to any
particular site will depend on the facts at that site.
n. Background
The term eligible response site is defined in CERCLA section 101(41). Generally, section
101(41)(A) defines an eligible response site as a site that meets the definition of a "brownfield
site" in section 101(39).' Section 101(41)(B) includes certain sites otherwise excluded from the
definition and authorizes EPA to include certain additional sites as eligible response sites based on
site-specific statutory criteria. Section 101(41)(C), the focus of this guidance, authorizes EPA to
exclude certain sites from the definition of an eligible response site.
Under section 101(41)(C)(i), eligible response sites do not include sites at which EPA
"conducts or has conducted a preliminary assessment (PA) or site inspection (SI) and, after
consultation with the State, determines or has determined that the site obtains a preliminary score
sufficient for possible listing on the National Priorities List or otherwise qualifies for listing on the
National Priorities List." Section 101(41)(C)(i) also provides that a site excluded under this
provision may become an eligible response site again if EPA determines no "further federal action
will be taken."2
1 The definition of a "brownfield site" contains a number of exclusions that should be
reviewed to determine if a site in question meets the base definition of an eligible response site.
See CERCLA, 42 U.S.C. § 9601(39)(A).
* EPA expects that the President will delegate the authority to make determinations under
section 101(41)(C) to the Administrator of U.S. EPA through forthcoming changes to Executive
Order 12580. We anticipate that the Administrator will redelegate, through EPA Delegation 14-
17, the authorities in section 101(41)(C)(i) to the Regional Administrators with the authority to
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The definition of eligible response site affects sections 105(h) and 128(b). Section 105(h)
outlines circumstances when EPA should conditionally defer an eligible response site from final
listing on the National Priorities List (NPL).3 Generally, section 128(b) limits EPA's authority at
eligible response sites to take enforcement or cost recovery actions against persons who are
conducting or have conducted a response action in compliance with a State program that governs
response actions for protection of public health and the environment. If the Region excludes a
site from being an eligible response site, that site will not be subject to the deferral provisions in
section 105(h) and the limitations on EPA's enforcement and cost recovery authorities under
section 128(b) will not apply at that site.4
Makin Determinations under Section 101f41MCffl
Section 101(41)(C)(i) provides authority to make two determinations affecting a site's
eligible response site status. First, a determination after a PA or an SI that a site obtains a
preliminary score sufficient for possible listing or otherwise qualifies for listing operates to
exclude a site from the definition of eligible response site. Second, the Region may make a
determination that "no further federal action will be taken" at a site previously excluded; thus,
making that site an eligible response site.
EPA will make these determinations only for sites that are entered in CERCLIS,5 meaning
the site warrants EPA assessment.6 This part sets forth EPA's general policy regarding when and
further delegate to the Branch Chief level. This guidance assumes this delegation structure will b<
made final and we will notify the Regions if this guidance is inconsistent with the final version of
Delegation 14-17.
3 The NPL is "the list compiled by EPA pursuant to CERCLA section 105, of
uncontrolled hazardous substance releases in the United States that are priorities for long-term
remedial evaluation and response." 40 C.F.R. § 300.5 (2001).
4 Determinations under section 101(41)(C)(i) to exclude a site from the definition of an
eligible response site have no affect on EPA's authority to provide grant or loan funding under
sections 104(k) (brownfields funding) and 128(a) (state and tribal response program funding).
5 "CERCLIS is the abbreviation of the CERCLA Information System, EPA's
comprehensive data base and data management system that inventories and tracks releases
addressed or needing to be addressed by the Superfund program." 40 C.F.R. § 300.5.
6 Generally, sites assessed using brownfields grant funds or under Targeted Brownfields
Assessment program will not enter the CERCLIS universe.
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how in the current assessment process the Regions generally should make these determinations.7
Additionally, this part addresses the EPA/State consultation requirement under section
A. Determinations to Exclude a Site
1.
The Decision Point
Typically, Regions should exclude a site from the definition of an eligible response site
only after an SI has been conducted,* and the site has achieved a preliminary score sufficient for
possible listing on the NPL.9 The nature and quality of the information available after an SI
should allow Regions to make these determinations with a high level of confidence. However,
since the information available at the time of a PA or SI will vary from site to site, Regions may
be able to determine that a site has a preliminary score sufficient for possible listing at an earlier
stage in the assessment process. Regions should make the determination of whether a site's
preliminary score is sufficient for possible listing at the point in the site assessment process when
the information regarding site conditions allows the decision to be made with a high level of
confidence. By focusing on the nature and quality of the information as the basis for this decision,
EPA hopes to minimize situations where a Region excludes a site but after further assessment
determines that the site conditions do not actually warrant a preliminary score sufficient for
possible listing. Therefore, in order to make the determination after a PA and before the SI, a
Region generally should have enough information to conclude with a high level of confidence
that the site has achieved a preliminary score above the current NPL threshold of 28.5. For
example, a pre-SI determination generally should be appropriate when monitoring data
demonstrate that there is human exposure (e.g., drinking water contaminated by a release at the
site, contaminated soils on residential properties, etc.).
7 References to the determinations by the "Regions" in this guidance refer to
determinations made by the person in any particular Region who has the delegated authority to
make determinations under CERCLA section 101(41)(C)(i).
8 This would include a combined PA/SI or an integrated assessment. Additionally, section
101(41)(C)(i) applies to PAs or Sis conducted by States through agreement with EPA.
9 Score refers to a numeric calculation made under the Hazard Ranking System (HRS)
that will reflect the potential risk associated with a site. 40 C.F.R. pt. 300, Appendix A (2001).
Various tools have been developed that will provide an early indicator of whether a site "scores"
sufficient for possible NPL listing. Under the current assessment process, "a preliminary score
sufficient for possible listing" would be a preliminary score of 28.5 or greater.
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Section 101(41)(C)(i) also provides that the term eligible response site does not include
sites for which EPA determines that the site "otherwise qualifies for possible listing on the NPL."
There are two methods, in addition to qualifying based on an HRS score, by which a site may be
added to the NPL. First, a site may be added to the NPL if a State designates it as the State's
highest priority. 42 U.S.C. § 9605(a)(8)(B), 40 C.F.R. § 300.425(c)(2). Second, a site may be
added to the NPL if the Agency for Toxic Substances and Disease Registry issues a health
advisory recommending disassociation of individuals from the release; EPA determines that the
release poses a significant threat to public health; and, EPA decides it will be more cost-effective
to use its remedial rather than its removal authority. 40 C.F.R. § 300.425(c)(3). Under these
circumstances a Region should make a determination to exclude the site from the eligible response
site definition.
Regions should review their decision-making procedures for preliminary assessment and
site inspection reports. This review should evaluate whether changes are appropriate to ensure
timely decision making on sites relative to section 101(41)(C)(i). Regions should also ensure that
adequate procedures exist for creating a record for section 101(4l)(C)(i) determinations.
Delegation 14-17 delegates the authority to make these determinations to the Regional
Administrator with authorization to redelegate this authority to the Branch Chief level. The
Region should have a clearly identified document that displays this determination that is signed by
the regional official delegated the authority to make these determinations. The Regions should
modify the appropriate decision documents as needed to include this determination. If a
determination to exclude a site from the definition is based on State priority or an ATSDR health
advisory (i.e., the site otherwise qualifies for listing) this information should be clearly identified in
the determination.
2. Policy for Consultation with States and Indian Tribes
When the Region believes a site has obtained a preliminary score sufficient for possible
listing, or otherwise qualifies for the NPL, the statute requires that the Region consult with the
State prior to making the determination to exclude the site from the eligible response site
definition. The Region should also consult with a Tribe in accordance with this policy when a site
is on or near Indian tribal land. Regions should agree with States and Tribes upon a process for
notification and consultation for sites that EPA proposes to exclude pursuant to section
101(41)(C)(i), including appropriate time frames for response. In some Regions, States or Tribes
perform some or all of EPA's PAs and Sis under a cooperative agreement; thus, the consultation
requirement should be easy to satisfy through existing information exchanges. Where EPA
conducts the PA or SI, the PA or SI reports supporting a determination should be forwarded to
the relevant State and Tribe for review. To avoid any misunderstandings, the Regions, States,
and Tribes should document these communications in writing. This might be accomplished
through a form letter to accompany each report or by keeping internal records of any
communications.
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The Regions should ensure that States, Tribes, and the public can easily determine the
status of a particular site. Regions can accomplish this goal in several ways. The Regions could
compile and update quarterly a publicly available list (preferably online) of sites in each State,
indicating those sites that the Region has determined are not eligible response sites, and any sites
for which the Region has determined there will be no further federal action. This information
might also be conveyed through regional online site descriptions or other online databases and
non-electronic sources to make the information available to those without internet access. EPA
intends to modify codes in CERCLIS to capture these determinations. The Regions should also
consider how they intend to handle site-specific inquiries regarding the status of a site.
B. Determinations that No Further Federal Action will Be Taken
Section 101(41)(C)(i) authorizes EPA to designate a site previously excluded because it
had obtained a preliminary score sufficient for possible listing or otherwise qualified for listing, an
eligible response site by making a determination that "no further federal action will be taken"
(NFFA determination). Depending on site-specific circumstances, the Regions generally should
make this determination at one of two points in the current assessment process. First, if a Region
determines that No Further Remedial Action is Planned (NFRAP) and the regional removal and
legal enforcement programs do not anticipate removal and/or cost recovery actions with respect
to the site, then it may be appropriate to make a NFFA determination in conjunction with the
NFRAP decision. Second, where the Region makes a NFRAP determination and refers a site for
removal assessment a NFFA determination generally should be made when the site is Archived
from CERCLIS.10 Also, if consultations with the removal and legal enforcement programs prior
to a NFRAP determination reveal current or potential removal, enforcement, or cost recovery
actions, then a NFFA determination generally should be made when the site is Archived from
CERCLIS and not in conjunction with a NFRAP determination.
Sites at which the Region has conducted a PA or SI and determined that the site has
achieved a preliminary score sufficient for possible listing but have been referred or deferred to
another program for cleanup generally should not receive a NFFA determination until the Region
is confident that these sites will not require action under CERCLA. This would include sites
Archived and deferred to RCRA or the Nuclear Regulatory Commission (NRC). Also, the
Region generally should not make a NFFA determination for active CERCLIS sites being
addressed under a State program until the response action is complete and the Region believes
that no further federal action under CERCLA will be taken at that site.
To implement this provision of section 101(41)(C)(i), Regions should add a NFFA
determination to determinations documenting either NFRAP or Archive decisions, as outlined
above, and ensure that consultation with the legal enforcement and removal programs takes place
10 See the definition of "CERCLIS" for a description of "Archive". 40 C.F.R. § 300.5.
6
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prior to NFFA determinations. Delegation 14-17 delegates the authority to make NFFA
determinations to the Regional Administrator with authorization to redelegate the authority to the
Branch Chief level. When a Region decides to NFRAP or Archive a site and a NFFA
determination is appropriate the regional official delegated this authority must sign a document
indicating that "no further federal action will be taken." Delegation 14-17 also requires
consultation with the Regions legal enforcement office prior to making a NFFA determination.
Consultation should also take place with the removal program.11 The Regions generally should
not make a NFFA determination at a site with ongoing or potential enforcement, cost recovery,
or removal actions.
IV. Implementation of Section 101(41XC)(i) at Sites Where EPA has Previously
Conducted a Preliminary Assessment or Site Inspection
This section provides guidance on steps the Regions should take to make a determination
to exclude sites from the eligible response site definition where the Region has already
conducted an SI and for which a current site assessment decision indicates that the site has a
preliminary score of 28.5 or greater, or otherwise qualifies for listing on the NPL. In the current
CERCLIS universe, hundreds of sites have advanced beyond this assessment decision point and
may warrant exclusion from the eligible response site definition but the delegated official under
section 101(41)(C) has yet to make a formal determination. This part provides guidelines that
the Regions generally should follow to have the delegated official make a single determination
for a group of sites listed in CERCLIS sites that warrant exclusion from the eligible response site
definition. While the process for excluding these existing sites is different, the basis for
excluding these sites is the same as set form in part II of this guidance for site-specific
determinations - these sites have either achieved a preliminary score sufficient for possible
listing on the NPL, or otherwise qualify for listing.
Whether a site is excluded through this initial determination or on a site-specific basis as
outlined in part II is based on the timing of when the list of existing CERCLIS sites to be
excluded from the definition is generated and shared with the states for consultation. Once the
Regions have generated a list of existing CERCLIS sites warranting exclusion, as explained
below, this list should be shared with the States to satisfy the consultation requirement. At the
time the Region shares this list with the States, the Region should ensure that the process to
exclude sites on a site-specific basis, as outlined in part II of this guidance, is in place to handle
determinations for ongoing and future assessment decisions.
11 While the statute does not require consultation with the State prior to a NFFA
determination, a Region may want to communicate with the State, or Tribe, prior to making a
NFFA determination for sites that have obtained a preliminary score sufficient for possible listing
on the NPL.
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To help provide certainty regarding the status of these sites, the Regions should capture as
many of these current CERCLIS sites within a single determination as soon as practicable. This
initial determination should be tailored to exclude from the definition of eligible response sites
only those sites that would not warrant a NFFA determination under the guidelines listed in part
II. The goal is to make a determination to exclude sites that would have been excluded if the
statute was in place at the time the original assessment decisions were made. The Regions should
generally use the following two step process to accomplish this goal:
1) Generate a preliminary list using the CERCLIS database of:
• All active CERCLIS sites at which an SI has been conducted that have an
assessment decision indicating that the site has a preliminary score of 28.5 or
greater, except for sites where the decision made at the last completed assessment
was that "no further remedial action is planned" (NFRAP)(some NFRAP sites may
be captured under the guidelines set forth in the second bullet under (2)).
This list should be easily generated from CERCLIS and will capture those sites
past the SI stage with a preliminary score sufficient for possible listing on the NPL
that are still in the assessment pipeline, or have been referred to a State program,
or have a NFRAP determination but have been referred to the removal program,
enforcement, or for cost recovery.
• All sites at which a SI has been conducted, that have an assessment decision
indicating that the site has a preliminary score of 28.5 or greater, and have been
deferred to RCRA or NRC.
This list should also be easily generated from CERCLIS and will include all sites,
including Archived sites, that have a preliminary score sufficient for possible listing
and have been deferred to RCRA or NRC.
2) Add to the list by identifying those additional sites that fall within the part II
guidelines:
• Identify active CERCLIS sites at which a PA has been conducted and there is a
reasonably high degree of confidence that the site's preliminary score is above the
current NPL threshold of 28.5 (e.g., when monitoring data demonstrates that there
is human exposure).
Regional assessment managers should work to identify these sites.
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• Identify active CERCLIS sites at which a PA or SI has been conducted, that have
an assessment decision indicating that the site has a preliminary score of 28.5 or
greater, and for which the Region has determined that "no further remedial action
is planned" but may have current or future removal, enforcement, or cost recovery
actions associated with the site,
Regional assessment, removal, and legal enforcement staff should work to identify
these sites.
• Identify all sites that would otherwise qualify for listing as described in part II. A. 1
but have not yet been proposed for listing or listed on the NPL.
When the Region has identified those sites that should be excluded, the list of sites should
be compiled in a memorandum for signature by the official within the Region who has been
delegated the authority to make section 101(41)(C)(i) determinations. The memorandum should
communicate the Region's decision to exclude certain sites pursuant to section 101(41)(C)(i) at
which a PA or SI has been conducted and the Region has documented that the site obtained a
preliminary score sufficient for possible listing on the NPL or the Region has determined
otherwise qualifies for listing on the NPL,
This list may not be exclusive. Even if the Region follows the above process, it may later
discover sites in the existing CERCLIS universe that should have been excluded from the
definition based on section 101(4l)(C)(i). Making the initial determination as outlined above does
not preclude the Region from excluding existing CERCLIS sites in the future that the Region may
not have excluded under this initial determination.
This initial determination should be made after coordination with State and Tribal
counterparts and EPA Headquarters. Section 101(41)(C) requires consultation with the State
prior to making a determination to exclude a site. The Regions should share and discuss with
States and Tribes the list of sites to be excluded and document the results of this consultation for
the record. Furthermore, because EPA will be making these determinations for the first time, and
on a larger scale than future site-specific determinations, we request that Regions, for purposes of
this initial determination, coordinate with our staff.12
12 For purposes of this initial determination and for questions related to implementation of
this guidance please contact Sue Sladek, OSWER/OERR by phone at (703)603-8848 or by email
to sladek.susan@epa.gov; and, K.C. Schefski, OECA/OSRE by phone at (202)564-8213 or by
email to schefski.kenneth@epa.gov. If you have questions regarding federal brownfields funding
at eligible response sites or sites excluded from the definition, please contact Patricia Overmeyer
by phone at (202)566-2774 or by email to overmeyer.patricia@epa.gov.
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