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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 3 1 19?
OFFICE OF
THE INSPECTOR GENERAL
MEMORANDUM
SUBJECT: Superfund Sites Deferred To RCRA
Audit Report E1SFF8-11-0006-9100116
FROM: Michael Simmons
Deputy Assistant Inspector General
for Internal Audits
TO: Timothy Fields, Jr.
Acting Assistant Administrator
for Solid Waste and Emergency Response
Attached is the subject audit report. Generally, we found that: (1) the deferral
program goal has not yet been achieved, (2) many sites were inappropriate for deferral,
and (3) EPA did not know the cleanup status of some sites.
In accordance with EPA Order 2750, please provide this office a written
response to the report within 90 days of the report date. For corrective actions planned
but not yet completed by your response date, reference to specific milestone dates will
assist us in deciding whether to close this report.
This audit report contains findings and corrective actions the OIG recommends
to help improve the RCRA Deferral program. As such, it represents the opinion of the
OIG. Final determinations on matters in this report willbe made by EPA managers in
accordance with established audit resolution procedures. Accordingly, the issues
contained in this report do not represent the final EPA position, and are not binding
upon EPA in any enforcement proceeding brought by EPA or the Department of
Justice.
Again, we would like to thank your staff for their cooperation. Should your staff
have questions about this report, please have them contact Norman E. Roth, Divisional
Inspector General, Headquarters Audit Division at 202-260-5113, or Bill Samuel of my
staff at 202-260-3189.
Attachment u s EpA Headquarters Ljbrary
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Recycled/Recyclable • Printed with Vegetable Oil Based Inks on 100% Recycled Paper (40% Poslconsumer)
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EXECUTIVE SUMMARY
INTRODUCTION
OBJECTIVES
The Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) or
"Superfund" was enacted in 1980 to clean up the
worst abandoned or inactive waste sites in the nation.
In 1984, amendments to the Resource Conservation
and Recovery Act (RCRA) authorized EPA to compel
owners of RCRA hazardous waste treatment,
storage, and disposal (TSDF) facilities to clean up
releases of hazardous wastes and constituents at
their facilities. This cleanup process is referred to as
RCRA corrective action. Sites that have been
prioritized and in the cleanup universe are called the
corrective action workload. Using authorities granted
under both statutes has enabled EPA to effect
cleanup of hazardous wastes at all sites-active,
inactive, or abandoned.
EPA developed a policy to "...maximize the number of
site responses achieved through the RCRA corrective
action authorities, thus preserving the CERCLA Fund
for sites for which no other authority is available."
Sites had to be subject to the corrective action
authorities of RCRA Subtitle C in order to be deferred.
The Agency's Superfund program has transferred
cleanup responsibility for approximately 3,000 sites to
the RCRA program. For the purposes of this report,
we will refer to sites transferred out of Superfund as
deferred sites, and the process by which this activity
occurs as a deferral.
We had three objectives.
1. Has the National Priorities List (NPL)/RCRA
deferral policy achieved its goal?
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RESULTS IN BRIEF
2. Were the deferrals made in accordance with the
policy?
3. Were procedures for deferring sites from one
program to another effective?
In our view, EPA's deferral program has not achieved
its goal of effecting more cleanups using RCRA
corrective action authorities. The Resource
Conservation and Recovery Act Information System
(RCRIS) indicates that less than 2 percent of deferred
sites have been cleaned up1. (See Appendix 6 for
endnotes.) Only about 30 percent of the deferred
sites are in the RCRA corrective action workload.
However, many of those have cleanup activities in
progress. GAO, in an October 1997, report entitled,
"Progress Under the Corrective Action Program Is
Limited, But New Initiatives May Accelerate
Cleanups," credits the Agency for having begun
cleanups at about half of the sites in the corrective
action workload.
In contrast to cleanup activity in the corrective action
workload, the remaining deferred sites (70 percent),
are not in the corrective action workload, and are
unlikely candidates for cleanup in the near future.
RCRIS reported that cleanup had begun at only about
3 percent of our statistically sampled sites not in the
corrective action workload.
We cannot say that deferred sites not included in the
corrective action workload would have been any
further in the cleanup process in the Superfund
program if they had not been deferred. We can say
that deferred sites which are not in the corrective
action workload have a much reduced chance of
being addressed. Furthermore, while not all deferred
sites may pose a current threat to human health and
the environment and some states may have taken
cleanup actions not reflected in information we
obtained, many sites may still pose serious risks. For
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example, about one-third of the deferred sampled
sites having Hazard Ranking System (MRS) scores
not in the RCRA corrective action workload had
scores high enough to be potentially eligible for
placement on the NPL.
EPA needs to review and improve its policies and
procedures for deferring sites. Chapter 3 discusses
sites which, according to Agency policy, should not
have been deferred from Superfund to RCRA. Sixty-
seven percent (210 out of 313) of the sampled sites
not in the corrective action workload fell into this
category. Sampled sites inappropriate for deferral
had been in EPA's inventory an average of about 17
years. In addition, as discussed in Chapter 4, we
could not readily locate another 253 sites. For some
of these sites, the states informed us that actions had
been taken or were underway.
This report contains recommendations to address
those sites which were inappropriate for deferral or
could not readily be found, and to improve
communication and decisions for future deferrals.
Chief among these is our recommendation that EPA
and the states conduct a cooperative effort to
evaluate sites' current cleanup needs. EPA and
states will need to determine which program has
available resources and legal authority to address
sites starting with those that pose the greatest threats
to human health and the environment.
AGENCY COMMENTS The Acting Assistant Administrator for Solid Waste
and Emergency Response indicated that (1) the
findings and recommendations will improve the
efficiency of the deferral process, and (2) OSWER is
prepared to reassess many of the site management
decisions to ensure that EPA and state response
efforts protect human health and the environment.
The Acting Assistant Administrator also suggested
that we revise various parts of the report to clarify the
issues discussed.
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We made necessary revisions, and have included the
full text of the Acting Assistant Administrator's
comments and the OIG evaluation of the comments
as Appendix 4.
IV
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TABLE OF CONTENTS
EXECUTIVE SUMMARY i
ABBREVIATIONS vii
CHAPTER 1 1
INTRODUCTION 1
Objectives 1
Background • 1
Scope and Methodology 4
CHAPTER 2 5
DEFERRAL PROGRAM GOAL NOT ACHIEVED 5
Most RCRA Deferrals Not in the Corrective Action Workload 6
Sixty-seven Percent of Sites Inappropriate for Deferral 7
RCRIS Indicates Sites Not Being Cleaned up 7
Deferral Program Goal Not Achieved 8
Next Steps 8
Recommendation 11
CHAPTER 3 .. . 12
MANY SITES WERE INAPPROPRIATE FOR DEFERRAL 12
67% of Sites Inappropriate for Deferral to RCRA 13
Better Communication and Adherence to Policy Would Improve Decisions .. 14
Deferred Sites May Need Attention 16
First Example 17
Second Example 18
Conclusions 19
Recommendations 20
CHAPTER 4 21
EPA DID NOT KNOW CLEANUP STATUS OF SOME SITES 21
Deferred Sites Not in RCRIS 21
ID Number Changed 22
Deferred to Another EPA Program 22
Deferred to States 23
Status Unknown to EPA 26
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Communication And Procedures Need Strengthening 28
Conclusions 29
Recommendations 30
APPENDIX 1 - 32
Scope, Methodology, And Prior Audit Coverage 32
APPENDIX 2 37
Details of Sites Inappropriate For Deferral 37
APPENDIX 3 40
Information on Sites Not Inappropriate For Deferral 40
APPENDIX 4 42
Agency Response And OIG Evaluation 42
APPENDIX 5 46
Distribution .. 46
APPENDIX 6 47
Endnotes 47
VI
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ABBREVIATIONS
CERCLA
CERCLIS
GAO
MRS
HSWA
NCAPS
NCR
NPL
OSWER
RCRA
RCRIS
TSCA
TSDF
Comprehensive Environmental Response, Compensation and
Liability Act (1980)
Comprehensive Environmental Response, Compensation and
Liability Act Information System
U.S. General Accounting Office
Hazard Ranking System
Hazardous and Solid Waste Amendments
National Corrective Action Prioritization System
National Oil and Hazardous Substances
Pollution Contingency Plan
National Priorities List
Office of Solid Waste and Emergency Response
Resource Conservation and Recovery Act
Resource Conservation and Recovery Act Information System
Toxic Substances and Control Act
Treatment, Storage or Disposal Facility
Vll
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CHAPTER 1
INTRODUCTION
OBJECTIVES
BACKGROUND
The National Priorities List
In response to a request from the Office of Solid
Waste and Emergency Response (OSWER), we have
performed an audit of sites deferred from the
Superfund program to RCRA. We had three
objectives.
1. Has the National Priorities List (NPL)/RCRA
deferral policy achieved its goal?
2. Were the deferrals made in accordance with the
policy?
3. Were procedures for deferring sites from one
program to another effective?
CERCLA was enacted in 1980 in response to the
dangers of uncontrolled or abandoned hazardous
waste sites. To implement CERCLA, EPA revised the
National Oil and Hazardous Substances Pollution
Contingency Plan (NCP).
CERCLA requires that the NCP include a list of
national priorities among the known releases or
threatened releases of hazardous substances,
pollutants, or contaminants throughout the United
States. EPA is to revise the NPL at least annually.
The principal mechanism for determining these
priorities is the Hazard Ranking System (HRS). EPA
calculates the HRS score by estimating risks
presented in four potential pathways of human or
environmental exposure: groundwater, surface water,.
soil and air. Numerical values are computed for each
factor within the four categories to arrive at a final site
score on a scale of 0 to 100. Those sites that score
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I
The NPL/RCRA Policy
28.50 or greater on the MRS are potentially eligible for
the NPL.
Since the NPL was first published as a final rule
(September 8, 1983), the Agency's policy has been to
defer listing sites that could be addressed by RCRA
Subtitle C corrective action authorities, even though
EPA has the statutory authority to list all RCRA sites
that have an HRS score of 28.50 or greater. The
enactment of the Hazardous and Solid Waste
Amendments (HSWA) in 1984 greatly expanded
RCRA Subtitle C corrective action authorities. As a
result, the Agency publicized its policy to defer to the
RCRA program sites subject to RCRA corrective
action authorities unless and until the Agency
determined that RCRA corrective action was not likely
to succeed or occur promptly. The RCRA Deferral
policy states that the intent of the policy was to
maximize the number of site responses achieved
through the RCRA corrective action authorities, thus
preserving the CERCLA Fund for sites for which no
other authority is available.
In 1986, EPA decided that certain RCRA waste sites
would continue to be placed on the NPL and not
deferred to RCRA. The sites included, among others,
generators or transporters of hazardous waste, which
are not required to have a final RCRA permit. In
1988, four new categories of handlers were to be
considered for listing and not deferred: (1) non- or
late-filers for RCRA permits [Treatment, Storage, or
Disposal (TSDFs) who do not file for RCRA permits or
file late]; (2) converters (TSDFs that closed or
became generators only); (3) protective filers
(handlers that filed as a TSDF for a RCRA permit to
protect themselves from the penalties of failing to file,
but were later determined not to be TSDFs); and (4)
sites holding permits before the enactment of HSWA.
According to data from the Comprehensive
Environmental Response, Compensation and Liability
Act Information System (CERCLIS), 2,941 sites were
deferred from the Superfund program. According to
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1200 Pennsylvania Avenue NW
Washington DC 20460
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Environmental Priorities
initiative
Archived Sites
deferral dates we located, these sites were deferred
between fiscal years 1983 and 1997. Approximately
two-thirds of the deferrals occurred as a result of the
Agency's Environmental Priorities Initiative (the
Initiative).
The Initiative, which began in 1988 and ended in
fiscal 1992, was designed to utilize Superfund
resources to assist RCRA activities in regional offices
in setting corrective action priorities. This would allow
the Agency to address in a timely manner those sites
that presented the greatest threat to human health
and the environment. To accomplish this objective,
Headquarters officials provided regional officials with
a list of active storage and treatment facilities, as well
as closing treatment, storage, and disposal facilities.
These deferrals would be recorded in the CERCLIS
inventory. Superfund resources would then be used
to complete a preliminary assessment, and in some
cases, a site inspection/ RCRA Facility Assessment
for each site. RCRA officials would use these
assessments to determine the site's priority in the
RCRA corrective action workload, to estimate
environmental significance, and to provide a basis for
permitting or enforcement action.
Since Agency guidance does not supersede federal
rule, the deferrals of the Initiative sites back to RCRA
should have been consistent with criteria enumerated
in 40 CFR Part 300 (the NPL/RCRA deferral policy).
For this reason, we did not differentiate Initiative
deferrals from non-Initiative deferrals in sample
selection or for reporting purposes. We do, however,
recognize that the Initiative was the cause of
approximately two-thirds of the deferrals in the
universe.
Seven hundred and forty (740) of the 2,941 deferred
facilities were classified as sites awaiting a Superfund
decision (active in CERCLIS), while 2,201 were
archived (inactive) from CERCLIS. EPA introduced
the CERCLIS archiving effort in 1995, as part of the
Agency's Brownfields Initiative on economic
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redevelopment. When sites are archived, no further
interest under the federal Superfund program exists.
The Agency created the archive list to address the
concern that sites listed in C ERG LI S carried a
perceived potential threat for Superfund liability (also
known as the "CERCLIS stigma.") Once sites are
deferred to RCRA, they should also be archived from
CERCLIS, if no further federal Superfund interest
exists.
SCOPE AND METHODOLOGY We conducted this audit from March 1998 to January
1999. To accomplish the objectives, we conducted
fieldwork in Headquarters OSWER and in Regions 2,
3, 5, and 9. OSWER provided us with the universe of
sites deferred from Superfund. From this CERCLIS
data, we selected the above four regions primarily
based on the total number of deferrals, the status of
state corrective action authority, and the number of
sites not appearing in RCRiS. The four regions
selected contained over 50 percent of all sites
deferred, and over 70 percent of the deferred sites
which did not appear in the corrective action
workload. Appendix 1 presents additional information
on the scope, methodology, and prior audit coverage.
We performed our audit in accordance with the U.S.
General Accounting Office's (GAO's) Government
Auditing Standards, issued by the Comptroller
General of the United States (1994 Revision). We
also reviewed OSWER's Federal Managers' Financial
Integrity Act reports for fiscal years 1997 and 1998.
The reports did not identify any material weaknesses
or vulnerabilities related to RCRA deferrals. We did
not detect any control weaknesses except for those
discussed in this report.
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CHAPTER 2
DEFERRAL PROGRAM GOAL NOT ACHIEVED
Since the NPL/RCRA deferral policy was published in
1983, Superfund officials have transferred cleanup
responsibility to RCRA for approximately 3,000 sites.
The universe for cleanups under RCRA Subtitle C
authority is called the corrective action workload.
However, RCRIS indicates that less than one-third of
the sites deferred from Superfund are in the
corrective action workload. When we looked more
closely at sites not in the workload, we found that in
our four-region sample, 67 percent of the sites were
inappropriate for deferral.
Although almost 3,000 sites were deferred, according
to RCRIS only 49 have been cleaned up, and 32 of
those cleanups were from the corrective action
workload. The fact that sites were not in the
corrective action workload does not mean that the
sites are low or no risk. About one-third of all sites
scored but not in the corrective action workload had
MRS scores which were high enough to be
considered for listing on the NPL.
Deferring sites to RCRA which do not meet the
criteria for placement in the corrective action workload
will not maximize cleanups. RCRA focuses its
resources on cleaning up sites in the corrective
workload. Sites not in the workload will not normally
be a priority for cleanup. Because so many of these
sites were inappropriate for deferral, Superfund and
RCRA officials will now have to revisit and perhaps
reassess and score many of them, especially those
that have the greatest risk to human health and the
environment.
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MOST RCRA
DEFERRALS NOT IN
THE CORRECTIVE
ACTION WORKLOAD
The intent of the NPL/RCRA deferral policy was to
maximize the number of site responses by using
RCRA cleanup authorities. At the time the policy was
developed (1983 -1989), there were thousands of
sites needing Superfund attention, but a finite amount
of resources in the Fund. The policy would preserve
the Fund for use on sites where there was no other
cleanup authority and at the same time effect cleanup
of some of these sites using RCRA corrective action
authorities.
EPA has determined which facilities it considers to be
its universe for cleanups under the Corrective Action
Program and has identified them as the corrective
action workload universe within RCRIS. Sites are in
the corrective action workload because the facility
owners are seeking or have a permit to treat, store,
and dispose of hazardous materials. A site may also
be in the workload when a facility owner volunteers to
begin corrective action or when a state makes the site
a priority. EPA and state resources and cleanup
efforts are focused on those sites in the corrective
action workload.
However, RCRA analysis of CERCLIS data from April
1998, showed that of the 2,941 sites deferred, only
842 (29 percent) were in the corrective action
workload. The following pie chart shows the status of
sites deferred to RCRA.
Superfund Sites
Deferred To RCRA
Scatus Unknown
153
Not in CA Workload (In RCRIS)
CA Workload (In RCRIS)
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SIXTY-SEVEN PERCENT
OF SITES
INAPPROPRIATE FOR
DEFERRAL
RCRIS INDICATES
SITES NOT BEING
CLEANED UP
We found that in the four regions sampled (which
included 1,388 of the 1,846 sites not in the corrective
action workload) 67 percent of the sites were
inappropriate for deferral. Most were inappropriate
because the facility owners were no longer seeking a
permit to function as a TSDF. Therefore, these sites
would not be in the corrective action workload. We
learned from our sample that the sites inappropriate
for deferral have been in EPA's inventory an average
of about 17 years, and 29 of 108 (26%) of the
sampled sites having MRS scores had scores high
enough to be considered for the NPL. Chapter 3
provides a detailed discussion of the sites that were
not in the corrective action workload and were
inappropriate for deferral.
Further, approximately 10 percent (253) of the
deferred sites did not appear in the RCRIS database.
We discuss these sites in Chapter 4. Therefore, we
will limit discussion for the rest of this chapter to the
2,688 sites in RCRIS-those in the corrective action
workload (842) and those not in the corrective action
workload (1,846).
RCRIS indicates that of the 2,688 sites deferred from
Superfund, 49 (less than 2%) have been cleaned up.
Of these 49 sites, 32 were in the corrective action
workload and 17 were not. GAO, in an October 1997,
report entitled, "Progress Under the Corrective Action
Program Is Limited, But New Initiatives May
Accelerate Cleanups," credits the Agency for having
begun cleanups at about half of the sites in the
corrective action workload.
In contrast to cleanup activity in the corrective action
workload, RCRIS reported that cleanup had begun at
about only 3% of our statistically sampled sites not in
the corrective action workload. Stated another way,
97% of the sites not in the corrective action workload
have not been addressed beyond prioritization. This
would be consistent with the Agency's decision to
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I
DEFERRAL PROGRAM
GOAL NOT ACHIEVED
NEXT STEPS
focus resources on sites in the corrective action
workload.
The fact that sites did not get in the corrective action
workload does not mean that the sites contain low or
no risk to human health and the environment. We
reviewed MRS scores for all of the sampled sites that
did not appear in the corrective action workload and
found that about one-third, or 86 of the 242 sites that
had been scored, had MRS scores which were high
enough to be considered for listing on the NPL. We
learned from our statistical sample that sites not in the
corrective action workload have been in EPA's
inventory for about 17 years on average.
In conclusion, the low number of completed cleanups,
the low percentage of deferred sites in the corrective
action workload, and the long amount of time the
sites not in the corrective action workload have been
in EPA's inventory with little or no activity beyond
prioritization, suggest that the NPL/RCRA deferral
policy has not achieved its objective. Because sites
not in the corrective action workload are not expected
to be addressed using corrective action "promptly" or
any time in the near future, the intent of the policy
'would not be met and cleanup of these deferrals
would not be maximized. Because so many of these
sites were inappropriate for deferral, Superfund and
RCRA officials will now have to revisit, and perhaps
reassess and score, many of these deferred sites,
especially those having the greatest risk to human
health and the environment.
The results of our audit suggest that the Agency
needs to revisit many of these deferred sites. Based
on our audit work, we are suggesting an approach
which may enable Agency officials to prioritize their
efforts to focus first on those sites which pose the
greatest risk.
We suggest that Agency officials start with deferred
sites not in the corrective action workload, since they
are not normally a priority for RCRA. These would
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include all sites not in the corrective action workload,
whether or not we considered them to be appropriate
for deferral.
During our four-region review, we found that only
about half of the sites deferred to RCRA had MRS
scores. We would suggest reviewing unscored sites
to determine the severity of the threats posed by
these sites and their eligibility for listing on the NPL
Recognizing that some of the scores on scored sites
may be based on old MRS criteria, updating the
scores of some sites may be appropriate as well.
To complete the universe of deferred sites with MRS
scores not in the corrective action workload,
Superfund and RCRA officials must also locate all of
the 253 status unknown sites (discussed in Chapter
4). They should determine whether they are RCRA
deferrals (some in our sample were state Superfund
sites) not in the corrective action workload, and score
them if necessary.
Once the universe is identified, we suggest that
Agency officials look first at sites that had MRS scores
of 28.5 or higher, or sites that were assigned a high
NCAPS ranking in RCRIS. We initially expected to
find a great deal of overlap of sites ranked high in
Superfund and high in RCRA because the NCAPS is
based on the MRS. We did not find this to be the
case. In fact, the MRS scores and the NCAPS priority
rankings did not usually correlate. For example, a
site with an MRS score of 28.5 or above may have
been assigned a medium, low or no priority in RCRA.
Conversely, there were sites with HRS scores below
28.5 with high priority assignments in RCRA.
Though we did not audit for the cause of this lack in
correlation, Agency officials and we speculated at an
exit conference that this could be caused by the age
of some HRS scores or that NCAPS rankings were
amended after interim actions. Nevertheless,
because we cannot be confident of this speculation,
we believe that the lack of correlation in the HRS
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scores and NCAPS rankings warrants consideration
during this assessment process.
Relationship Between
High Superfund Program (MRS) Score
And High RCRA Program (NCAPS) Ranking
High MRS score »n
NCAPS ranking not high.
(45 sites)
High NCAPS ranking
and HRS not high.
Both HRS score and
NCAPS ranking were high.
(7 cites)
As the Venn diagram above illustrates, 69, or 22%, of
the 313 statistically sampled sites had an HRS score
of 28.5 or more or were ranked "high" in the National
Corrective Action Prioritization System (NCAPS)-the
RCRA method of prioritizing sites. Forty-five of these
sites had an HRS score > than or equal to 28.5, while
17 sites ranked high in NCAPS. However, only 7 of
the 69 sites were a high priority in both programs
(HRS > than or equal to 28.5 and high NCAPS).
The differing assignments of site priorities, along with
the low program priority of the sites not in the
corrective action workload, suggests a re-examination
of the prioritization of sites is needed.
Finally, we suggest that Agency officials work
together with states to determine the current status of
the high priority sites. Using this information, EPA
and states could maximize cleanups and address the
"worst sites first." As current cleanup status is
identified, RCRIS should be updated.
As Agency and state officials work together to
address the RCRA deferrals, we suggest a multi-
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RECOMMENDATION
program approach, as provided for in EPA policy.
Using its deferral policy, EPA intended to maximize
cleanups by using a multi-program approach. The
policy provided for the use of combined resources
when it said "RCRA authorities may be used by
themselves or in conjunction with CERCLA removal
and enforcement authorities to initiate corrective
action or to continue actions already begun." This
allows the use of CERCLA authority at non-NPL sites.
The policy also recognized that "deferred sites may
later be added to the NPL if corrective action is not
being taken." To maximize cleanups, EPA and states
should share expertise, consider resources available,
and avoid duplication of efforts.
Because there were almost 2,000 sites deferred to
RCRA that are not in the corrective action workload, it
may be appropriate for OSWER to reinstitute
something similar to the Environmental Priorities
Initiative. OSWER officials have indicated a
willingness to revisit unaddressed sites. Whatever
method is developed, we are in agreement that sites
posing the greatest risk should be evaluated first.
The Acting Assistant Administrator for Solid Waste
and Emergency Response should:
2-1. Develop a method and procedures for EPA
regions and the states to use to evaluate deferrals not
in the RCRA corrective action workload, but which
may pose risk to human health and the environment.
(Note: Recommendations 3-1, 4-4, 4-6, and 4-7
should be considered when developing the method
and procedures.)
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CHAPTER 3
MANY SITES WERE INAPPROPRIATE FOR DEFERRAL
Of The Deferred Sites,
1846 Were Not tn The
Corrective Action Workload
RCRIS C.A. WoiklMO
MI
Sutu« Unknown
Not In RCRIS C.A. WofkloM
Audit Reviewed 313 Sites
From Four Regions
Tottl: IMS
Majority Of Sampled Sites
Ware Inappropriate For Deferral
Of the 2,941 sites deferred from the Superfund
program, only 842 are in the corrective action
workload. As we will discuss in Chapter 4, 253 did
not appear in the RCRIS database. The remaining
1,846 sites (63 percent) were deferred to RCRA, but
were not part of the corrective action workload.
We took a closer look at sites not in the corrective
action workload and found that in the four regions
sampled, 67 percent of the deferrals were
inappropriate because:
>
(1) Decisions were made without sufficient
communication between RCRA and Superfund
program officials as to which authority would
best address the site;
(2) Deferral guidance2 was lacking; and,
(3) There was either misinterpretation or
inconsistent application of the NPL/RCRA
policy and the Environmental Priorities Initiative
guidance3.
The sampled sites have been in EPA's inventory for
about 17 years on average, and, according to RCRIS,
less than one percent (2 of 313) of them have been
cleaned up, despite the fact that a significant number
of them may be NPL-caliber sites. One-hundred
seven of 210 sites inappropriate for deferral had HRS
scores and 29 of the 108 (26%) scored equal to or.
above 28.5. Because a site is not in the corrective
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67% OF SITES
INAPPROPRIATE FOR
DEFERRAL TO RCRA
action workload does not mean that it does not pose
a threat. The examples discussed later in this
chapter demonstrate the need to determine the
current threat to human health and the environment
for sites that were inappropriate for deferral.
To review deferral decisions, we took a statistical
sample of sites not falling in the RCRA corrective
action workload in four regions. The regions in our
sample contained 1,388 of the 1,846 sites not in the
corrective action workload. By reviewing information
in Superfund files on which deferral decisions were
based and comparing that information to the
NPL/RCRA deferral policy and related EPA
guidance4, we concluded that approximately 67
percent of our sampled sites (210 of 313) were
inappropriate for deferral.
In general terms, most of the sites determined to be
inappropriate candidates for deferral had a change in
permitting status. For instance, a site may have been
a TSDF at the time RCRA was enacted, but then
changed status to a generator only, rather than obtain
a RCRA permit. This facility would be known as a
converter, and according to the NPL/RCRA deferral
policy, not an appropriate candidate for deferral.
Appendix 2 details the reasons why the 210 facilities
were inappropriate for deferral.
The following page contains a table showing the
number of sites we sampled, the number we found to
be inappropriate for deferral, and the projection of
sites inappropriate for deferral to the universe.
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Report No. 9100It6
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Projection of Inappropriate Sites
Sample
Size
313
Number of
Inapprop.
Sites
210
Weighted
Projection of
Inapprop.
Sites
1003
Universe
1388
BETTER
COMMUNICATION AND
ADHERENCE TO
POLICY WOULD
IMPROVE DECISIONS
As described above, 210 of the 313 sites not in the
corrective action workload were inappropriate for
deferral. While some of the remaining 103 sites may
have been appropriate for deferral at the time of
deferral, they may now be appropriate for
consideration under CERCLA, because they are not
in the corrective action workload and are not planned
to be addressed promptly. Appendix 3 details the
information on the 103 sites.
We believe insufficient communication between
Superfund and RCRA has contributed to the high
percentage of inappropriate deferrals. EPA's
"Guidance for Performing Preliminary Assessments
Under CERCLA," (EPA /540/G-91/013) recommends
that the Superfund site assessment contacts discuss
with RCRA officials whether or not to proceed with
Superfund investigative activities or to defer the site
to RCRA. However, our file reviews and interviews
with Superfund and RCRA regional officials have
shown that these decisions usually have been made
by Superfund staff, with only occasional input from
RCRA staff. RCRA, the amendments to it, the
regulations supporting it, and the guidance explaining
it, make up a voluminous and complex body of
knowledge which is not normally the area of
expertise of those Superfund officials who have been
making decisions as to whether cleanup can best be
effected under RCRA or CERCLA. The complexity of
14
Report No. 9100116
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the RCRA program would seem to necessitate
frequent communication on a site-by-site basis in
order to make good decisions about the
appropriateness and priority of the deferral.
Although the NPL/RCRA deferral policy was
published as a final rule in 1983 and amended in
1989, EPA did not issue guidance covering deferrals
of sites (cited above) until 1991. Sites have been
deferred from Superfund to RCRA, however, since
1983. While those inappropriate deferral decisions
that occurred prior to the guidance might have been
reduced had it been published sooner, we found no
evidence in the files referencing the guidance or its
decision-making technique. For instance, the
guidance included a "RCRA Eligibility Checklist" to
aid Superfund officials in making a determination
regarding site deferral eligibility. Yet, we found no
checklists or evidence of similar decision matrices in
the Superfund site assessment files.
Lastly, there was misinterpretation or inconsistent
application of the NPL/RCRA deferral policy and the
Environmental Priorities Initiative guidance. Under
the Initiative, Superfund resources were to be used
to perform enhanced preliminary assessments for
some unassessed RCRA sites. Once the
assessments were completed, at least one region did
not adhere to the NPL/RCRA policy. Our meetings
with RCRA and Superfund officials indicated
confusion over which sites should be deferred.
Superfund staff deferred facilities (back) to RCRA
that did not always meet the deferral criteria, such as
generators. One region's Initiative agreement
stipulated that all facilities were to be deferred to
RCRA upon completion of the site assessments.
Because no consideration for the appropriateness of
the deferrals was given, this stipulation was
inconsistent with the NPL/RCRA deferral policy.
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DEFERRED SITES MAY Of the 313 sites in our sample, we identified 210 as
NEED ATTENTION inappropriate for deferral to RCRA. For some of
these sites we gathered additional information. Using
data from RCRIS we checked on current status and
progress toward cleanup. We found that the majority
of these sites had not been addressed beyond site
prioritization. In fact, only two of the 210 facilities had
been reported in RCRIS as having been cleaned up.
Almost half of the sites which were inappropriate for
deferral had no MRS score. For those sites that were
scored, 26% of them scored high enough to be
considered for listing on the NPL.
e
We made a further attempt to obtain current cleanup
information for more than one-third of the 210 sites.
We asked selected states in Regions 3 and 5 for the
current status of 79 sites in their regions that were
inappropriate for deferral. The 79 sites either had an
MRS score of 28.5 or higher, or had no MRS score.
States provided responses for 66 of the 79 sites.
States indicated that only 15 of the 66 sites had
RCRA corrective action underway, or state Superfund
or voluntary cleanup planned, underway, or
completed. It is unknown whether these cleanups
meet RCRA standards. The remaining 51 of 66 sites
may need cleanup.
in addition, while 41 of the 66 facilities had closed,
contamination could still exist from previous
operations. (We do not know whether closures were
before or after cleanup, or, if after, whether RCRA
cleanup standards were met for all cases.) Once the
Agency verifies that RCRA standards for these
facilities have not been met, RCRIS should be
updated to reflect the current status.
The sites that have not been addressed by EPA or
states may need attention. The two examples
presented below illustrate the effect of inappropriate
deferrals. Based on MRS scores, these sites could
have been considered for listing on the NPL at the
time of deferral. Instead, they were deferred
16 Report No. 9100116
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First Example
(inappropriately) and archived from CERCLIS (in
accordance with the archiving guidance5). Potential
threats may exist to human health and the
environment for the surrounding communities.
The first site was inappropriate for deferral because it
was a facility that converted from TSDF status to
generator status before deferral. According to the
deferral policy, this sjte would not be eligible for
deferral because a converter would not be a priority
for the RCRA program.
Nevertheless, this site was deferred to the RCRA
program in 1995 after a Superfund contractor
assessing the facility concluded that the facility was
regulated under RCRA. Nowhere in regional files did
we find evidence that Superfund officials coordinated
with RCRA officials regarding the appropriateness of
the deferral.
Once deferred, the site was not included in the
corrective action workload because the facility was
not actively seeking a permit to operate as a TSDF.
Even though the site was not in the workload, it was
given a "high" priority ranking in NCAPS.
According to a June 1992, Corrective Action
Stabilization Questionnaire, lead contamination had
migrated off site and was found in the closest of four
residential wells located within one mile of the facility.
The lead levels found in samples taken from the wells
were four times higher than allowable tolerances
under the Safe Drinking Water Act. Employees
working at the facility (in 1995 there were 2,350),
should be restricted from going in to the areas of
contamination.
The official completing the 1992 RCRA Stabilization
Questionnaire recommended that as a stabilization
initiative, EPA could reduce risks to human health and
the environment by providing alternate water supplies
to the four residences. It also recommended further
17
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First Example:
— Not in the corrective action
workload
-High NCAPS priority
- HRS score above 28.5
- Alternate water supply may
be needed
— Investigation may be
needed
- Employees may be exposed
to contaminants
Second Example
investigation to define and characterize the impact of
the facility on the groundwater.
We cannot tell from Superfund or RCRA files whether
the investigation was completed, the alternate water
was supplied, the employees were restricted from
access to contaminated areas, or whether the
employees have been affected by the contamination.
However, the state authorized for ensuring corrective
action at the facility indicated to us in December 1998
that it is devoting its limited resources, in concert with
the EPA regional office, to those facilities that are
high environmental priorities and are in the corrective
action workload. This facility, however, is not in the
corrective action workload.
The state also indicated that "...based on the RCRA
corrective action priority status of most of the deferred
facilities, [the state] cannot understand why most, if
not all, of these facilities [deferrals in the state
authorized for corrective action] were ever considered
for deferral by U.S. EPA in the first place."
The second site was inappropriate for deferral
because it would not be subject to corrective action.
This site is not in the corrective action workload and
as of September 1998, when we conducted our
regional fieldwork, RCRA had not assigned an
NCAPS priority to the site.
In March 1995, Superfund officials deferred the site
because it was a RCRA facility. As with the previous
example, we found no evidence in the files that
Superfund officials had coordinated with RCRA
officials regarding the appropriateness of the deferral.
The facility has a history of non-compliance. In order
to perform a site inspection, state personnel had to
obtain a search warrant. In addition, based on an
anonymous call, state personnel witnessed the
dumping of substances believed to contain cyanide,
barium, and trichloroethylene into the ground near the
facility's plant. According to state personnel, no
18
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Second Example:
- Not in the corrective action
workload
- No NCAPS priority
- HRS score above 28.5
- History of non-compliance
- Suspicion of groundwater
contamination
— Groundwater is town's only
source of drinking
water (pop. >10,000)
CONCLUSIONS
cleanup action was ever taken because samples
showed that the cyanide in the groundwater samples
was below the levels needed to take an enforcement
action. However, concerns that barium and
trichloroethylene may have contaminated the
groundwater remain. The groundwater is the only
source of drinking water for the town (population
10,000).
It appears that, just prior to the 1995 deferral
decision, Superfund officials were considering
performing a listing site inspection, the results of
which would be used to determine whether to list the
site on the NPL. In January 1999, the same month in
which we received information about the status of the
site, the state sent a letter to the facility requesting an
investigation of the site.
As the two sites demonstrate, inappropriately
deferred sites can have serious environmental
problems, yet not fall within the corrective action
workload. Human health and the environment may
still be threatened because neither EPA nor the
states have identified beyond site prioritization the
extent to which cleanup is needed.
Almost 3,000 sites have been deferred from the
Superfund program to RCRA, yet less than one-third
are in the corrective action workload. A four-region
statistical sample of sites in the RCRA program but
not in the corrective action workload has shown that
67 percent of these sites were inappropriate for
deferral. Decisions to defer can be improved by
better coordination and communication between the
two programs and better adherence to the
NPL/RCRA deferral policy and guidance.
The effect of these inappropriate deferrals can be
serious. Twenty-six percent of the sites inappropriate
for deferral and having HRS scores were potentially
eligible for listing on the NPL. Yet RCRIS shows that
less than one percent of these sites (2 of 210) have
been cleaned up. The sampled sites have been in
19
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I
EPA's inventory for an average of about 17 years.
The extent to which human health and the
environment may be threatened currently is unknown.
RECOMMENDATIONS The Acting Assistant Administrator for Solid Waste
and Emergency Response should:
3-1. In cooperation with the states, assess the sites
that were inappropriate for deferral. Develop criteria
to determine which of them will be evaluated, update
site characterizations, prioritize the sites, and identify
the best legal authority and available resources to
effect cleanup.
3-2. Reemphasize the need for communication and
collaboration between Superfund and RCRA regional
officials prior to deferring sites from one program to
another. Restate the criteria for deferring sites, and
require regions to maintain written documentation (for
example, the deferral checklist) which shows that the
decision to defer has been agreed to by both
programs. Sites should not be considered deferred,
or coded as such in respective information systems,
until written acceptance of the proposed deferral(s) by
the receiving program is obtained.
20 Report No. 9100116
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CHAPTER 4
EPA DID NOT KNOW CLEANUP STATUS OF SOME SITES
DEFERRED SITES
NOT IN RCRIS
Of The Deferred Sites,
Status Was Unknown For 253
RCRIS C.A.WorklMd
Ml
No< In RCRIS C.A.WOIM
1MB
Audit Reviewed 108 Sites
From Four Regions
Status Was Discovered For
Many, But Not Most, Sites Sampled
DiffimmldeniMtr
1S
D«l«rmd To St»tti
M
Stotui Unknown
51
Total: 108
Chapter 3 discussed sites in the RCRIS data base
which were inappropriate for deferral to RCRA.
However, almost 10 percent (253) of the total number
of Superfund deferred sites were not found in the
RCRIS database. We attribute this to system
incompatibilities (between RCRIS and CERCLIS),
insufficient communication between the two
programs, and weak deferral procedures. As
discussed later in this chapter, not all of these sites
would be expected to be found in RCRIS because
they were not intended to be deferred to the RCRA
program. In addition, Agency officials indicated that
some of these sites may never have handled
hazardous wastes and would not appear in RCRIS.
We agree this is possible. However, information
found in the Superfund files for sites not found in
RCRIS indicated that some of these sites were part of
the Initiative program or had notified EPA that they
handled RCRA hazardous waste. We also found
misidentified sites that were handlers of RCRA
hazardous waste. While these sites were originally
not identified in RCRIS under one site identification
number, they were in RCRIS under another.
If our four region sample of the sites not appearing in
RCRIS holds true nationwide, about 31 percent (34
of 108 sampled sites) of these sites have HRS scores
high enough to be potentially eligible for listing on the
NPL. Since these sites may still pose risks to human
health and the environment, they should be of
continued federal interest. Yet EPA is generally
unaware of the status of cleanup, and is not
monitoring cleanup progress. By following up at the
state level, we were able to get limited status
information on many of these sites.
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The four regions we reviewed contained 154 of the
253 sites not appearing in RCRIS, We included 108
of them in our sample. By reviewing regional files
and automated systems, we were able to locate 50 of
the 108 sites as shown below.
Disposition of Sampled Sites
Disposition
ID Number Changed
Deferred to Another EPA Program
Deferred to States
Unknown
Total
Number of Sites
15
1
.34
58
108
ID Number Changed
Deferred to Another EPA
Program
Fifteen (15) of the 108 sites did not retain the same
site identification (ID) numbers in RCRIS that they
had in CERCLIS. For example, adjacent properties
owned by. the same company were given two site
identification numbers in CERCLIS. When the sites
were deferred and entered into RCRIS, RCRA
officials consolidated the sites into one and issued a
new site identification number. The 15 sites in this
category are being tracked in RCRIS, albeit under
new site identification numbers. Because there is no
crosswalk between the two automated systems,
Agency officials will have to manually search program
files to ensure that all deferred sites are accounted
for.
One of the 108 sampled sites was deferred to the
Toxic Substances and Control Act (TSCA) program
for monitoring. In this case, the RCRA deferral code
was recorded in CERCLIS because there was no
code for deferring a site to another EPA program.
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Deferred to States Thirty-four (34) of the 108 sites were intended to be
deferred to state, not RCRA, authorities. However,
there was no code in CERCLIS to indicate deferral to
states.
We identified the deferral to states coding problem in
the OIG audit report entitled, "State Deferrals: Some
Progress, But Concerns for Long-Term
Protectiveness Remain" (Report No. 8100234,
September 10, 1998). In response to this report, EPA
officials indicated that a code for state deferrals was
being developed. The fiscal 99/00 Superfund
Program Implementation Manual issued in July 1998,
indicated the development of the state deferral code.
Thirteen of the 34 state deferrals scored low enough
that no further remedial action would have been
planned. In these cases, a No Further Remedial
Action Planned (NFRAP) code should have been
entered in CERCLIS.
Seven of the 34 state deferrals were not scored.
Because of this, we cannot determine whether any
federal interest exists at these sites.
Regions 3 and 5 contained five of the seven unscored
sites. We followed up with nine states in these
regions. State officials indicated that two cleanups
were underway, the state had no information on two
of the sites, and the state did not provide a response
for the remaining site.
Fourteen of the 34 state deferrals scored high enough
(HRS score equal to or above 28.5) to merit federal
interest. The May 3, 1995, OSWER Directive 9375.6-
, 11, entitled "Guidance on Deferral of NPL Listing
Determinations While States Oversee Response
Actions," requires a written agreement between EPA
and the states for cleanup of sites where a federal
interest exists. The agreement would specify the
activities a state will perform and the reduced level of
oversight EPA would provide. Before the May 1995,
guidance, and the pilot state deferral program that
23 Report No. 9100116
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preceded it (from 1993-1995), there were no
provisions to defer sites to states where a federal
interest existed. Of the 14 state deferred sites which
scored high, 10 were deferred prior to the pilot
deferral program, 3 were deferred after the guidance
was published , and 1 had no deferral date. We
could not find any written agreements for these 14
state deferrals.
The following example shows why a written
agreement is important. One of the Superfund
deferrals scored well above the minimum requirement
to be listed on the NPL and was located in a state not
authorized for corrective action. Superfund site
assessment personnel indicated that the state was
going to take the lead on cleaning up the site.
However, the state changed its priorities and shifted
resources to another state program. When the site
was deferred, the state appeared to have good
intentions to enforce cleanup, but according to the
EPA Superfund site assessment manager, the
cleanup has stalled. A written agreement would have
committed state resources for cleanup, established
cleanup milestones, and committed EPA to monitor
progress against the milestones. These assurances
might have prevented the cleanup being stalled.
We followed up on the status of these 14 sites with
high HRS scores. Information from state officials and
a state database showed that two sites had been
cleaned up, three cleanups were underway, and three
were in the inventory for cleanup. For the remaining
six sites, we either received no response or found no
information in the state database.
OSWER officials told us the sites were not formally
deferred to states and were incorrectly coded as
deferred to RCRA. Formal deferrals did not occur
because there were no written agreements. The
officials who put the deferral codes in the system
(coded as deferrals in CERCLIS due to the lack of a
state deferrals code) are not authorized to code sites
as a state deferral until a written state deferral
24 Report No. 9100116
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agreement js in place. Therefore, even if a state
deferral code existed at the time, the sites should not
have been assigned the code until a written
agreement was in place.
Regional officials refer to sites that state and tribes
are working on but EPA has not yet listed or given up
its right to list as "informal deferrals." In addition to
the 14 sites we found which merit federal interest,
GAO reported in its report entitled "Unaddressed
Risks at Many Potential Superfund Sites"
(GAO/RCED-99-8, issued November 1998) on
approximately 800 similar sites in CERCLIS.
Although states, tribes, or PRPs may be addressing
the sites, they still merit federal interest. NCP
requirements do not apply to the sites identified in
GAO's report and ours. Thus, the preference for
permanence and treatment, the five-year review, and
community involvement may not be afforded for these
NPL-caliber sites. Our 1998, report on State
Deferrals (Report No. 8100234, September 10, 1998)
raised this concern for sites that were formally
deferred to states. In that report, we found that a
majority of the remedies were containment, rather
than permanent or treatment solutions, and only a
few had a requirement similar to the five-year review.
Thus, remedies may not remain protective over the
long term.
Agency officials told us that they cannot require
states to follow NCP requirements for non-NPL sites.
They also said that some states have indicated they
will not report site progress to EPA. Agency officials
could indicate in CERCLIS that states and tribes were
remediating sites, and that they have already begun
to track this information.
EPA officials also told us that they do not have the
resources to monitor the ongoing progress of
hundreds or potentially thousands of non-NPL sites.
They are currently focused on addressing sites they
plan to list or have listed on the NPL.
25 Report No. 9100116
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Status Unknown to EPA
We understand the Agency's position concerning the
states. We also recognize that states and tribes are
cleaning up some of these sites. However, we are
concerned about whether all cleanups at NPL-caliber
sites or sites that merit federal interest will be similar
to NPL cleanups in terms of community involvement,
remedy selection and long-term protectiveness of
remedies.
Documentation in EPA regional files did not indicate
the disposition of the remaining 58 of 108 sites in our '
sample. These sites were coded generally in
CERCLIS, indicating deferral to RCRA. However,
neither RCRA officials nor we were able to identify the
sites by identification number or name as being in the
RCRA program. From documentation obtained from
Superfund files, we know that 53 percent of the sites
that were scored in our sample of status unknown
sites, scored high enough to be considered for listing
on the NPL
MRS Scores For Status Unknown
Status
Unknown
HRS>
or = to
28.5
15
HRS<
28.5
13
NoHRS
Score
30
Total
58
While EPA could not provide information about the
disposition or cleanup status of these 58 sites, we
found that relevant states were able to supply us with
additional information. We chose to pursue current
status in two of the four regions in our sample. We
selected Regions 3 and 5 because no states in
Region 3 had corrective action authority, while, in
contrast, all states in Region 5 had corrective action
authority.
Regions 3 and 5 contained 36 of the 58 status
unknown sites. Selected states in Regions 3 and 5
provided cleanup status on 17 of the 36 sites.
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Cleanup was complete or underway for five of these
sites. Cleanup had not begun, but the site was in the
state inventory for 11 sites. States had no
information on one site. The following table depicts
these 17 sites based on whether they are NPL-caliber
or not.
Status and Potential NPL Eligibility of 17 Sites
Status
Cleanup
Complete/
Underway
Site in
Inventory
No Info.
'HRS
>or =
28:5
3
3.
HRS
<28.5
0
2
HRS
Unknown
2
6
1
Total
5
11
1
The 58 sites in the status unknown category are not
being tracked in RCRIS (at least not under their
CERCLIS site identification number). Many of them
are no longer being tracked in CERCLIS either
because they have been archived. Of the 58 status
unknown sites, 45 have federal interest (HRS score
equal to or above 28.5) or no HRS score.
Status Of Sites With Potential Federal Interest
CERCLIS
Status
Active
Archived
Totals
NPL
Eligible -
HRS > or
= 28.5
7
8
15
No HRS
Scores
3
27
30
Totals
10
. 35
45
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COMMUNICATION AND
PROCEDURES NEED
STRENGTHENING
The October 1996 CERCLIS archiving guidance says
that "Sites which will be addressed under
RCRA...should also be archived (by definition, no
further Superfund interest should exist at these
sites)." Three of the four regions in our sample
archived most of their sites after deferral.
One Regional office took a conservative approach to
archiving sites. During our review, Region 2 officials
told us they did not archive sites until they were
"absolutely" sure that no further CERCLA action was
needed at sites. In fact, Region 2 officials were going
through a process to check with states and other
programs, including RCRA, to determine whether
cleanup was needed or occurring under those
authorities before archiving the sites. Thus, even
though some of the Region 2 deferrals did not appear
in RCRIS, at least one program (Superfund) retained
lead authority for ensuring that environmental
problems were addressed.
The Superfund Program Implementation Manual
indicates that a "D" should be entered in CERCLIS
when a site is deferred to RCRA, but does not
discuss how the deferral is to occur. The September
1991, "Guidance for Performing Preliminary'
Assessments Under CERCLA" advises Superfund
officials to notify the site assessment contact "who will
discuss the situation with representatives of the
RCRA program and decide whether to proceed with
CERCLA investigative activities." While this guidance
addresses the need for communication with RCRA
officials on a site-by-site basis, it does not detail the
actual transfer and acceptance process.
Superfund officials told us that they reviewed site
documentation and coded sites in CERCLIS with a
"D" if they decided to defer the sites. They also told
us that they communicated informally with RCRA
officials. We did not see any documentation of these
informal discussions during our Superfund file
reviews, nor did we find any receipt or
acknowledgment of acceptance of lead authority in
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CONCLUSIONS
RCRA files. Superfund officials in one region told us
that they sent a list of sites that they intended to defer
to RCRA and gave those officials 30 days to review
and comment on the proposed deferral actions.
Since they got no response in the 30-day time period,
they deferred all the sites to RCRA.
Because CERCLIS and RCRIS do not interface,
RCRA officials would be unaware of lead authority for
a site being transferred to them without discussion
and agreement between offices. As discussed in
Chapter 2, enhanced communication on a site-by-site
basis is necessary to ensure that sites are placed with
the program having the legal authority and resources
to effect cleanup at the earliest opportunity.
Almost 10 percent of the total number of sites
deferred from Superfund to RCRA were not found in
the RCRIS data base. We attribute this discrepancy
to data system incompatibilities (between RCRIS and
CERCLIS), insufficient communication between
officials in the two programs, and weak deferral
procedures. In addition, some of these sites were
never intended to be deferred to the RCRA program.
The number of sites not appearing in RCRIS are
shown below by region.
Sites With Status Unknown
Region
01
02
03
04
05
06
07
08
09
10
Total
Number Of Sites
14
33
82
36
27
22
24
2
12
1
253
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If our sampling of four regions is consistent among all
regions, we would expect Superfund and RCRA
program officials to be able to locate about half of
these sites through regional file review. The other
half may require coordination with state officials.
• Many of the sites we followed up on were in state
inventories, although EPA does not know their
cleanup status.
It is important that EPA account for all of these sites.
In the group of sites not appearing in RCRIS, more
than 53 percent of the scored sites had an MRS score
equal to or above 28.5. Not only would they be
potentially eligible for listing on the NPL, but they may
still pose significant risk to human health and the
environment. For these reasons, EPA needs to
ascertain the status of these sites and monitor
cleanup progress.
RECOMMENDATIONS We recommend that the Acting Assistant
Administrator for Solid Waste and Emergency
Response instruct Superfund, and RCRA regional
officials as appropriate, to:
4-1. Add a code in CERCLIS for deferring sites to
other EPA programs.
4-2. Change the status of the 13 sites with low HRS
scores in CERCLIS to reflect the NFRAP designation
rather than deferral to RCRA.
4-3. Revise CERCLIS to reflect the appropriate
status of the 14 sites scoring equal to or above 28.5
in the HRS that were incorrectly coded as deferred to
RCRA.
4-4. Delay archiving sites until OSWER develops a
policy to determine whether state or tribal cleanups
are adequate. Include as a prerequisite to archiving,
a requirement for five-year reviews or some
comparable process for sites where hazardous
substances have been left on site so protect!veness
of remedies can be assured over the long term.
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4-5. Enter into written agreements when sites of
federal interest are deferred to states.
4-6. Determine whether the sites that were not
scored but were deferred to states merit federal
interest, and proceed with recommendation 4-2 or 4-3
and 4-4 and 4-5 as appropriate.
4-7. Determine the appropriateness of the deferral
(see Chapter 2 for guidance and discussion) for the
58 status unknown sites. After coordination with
RCRA and state officials, either defer and update
RCRIS accordingly, assess for potential listing on the
NPL, or retain and monitor state cleanup progress in
CERCLIS.
4-8. Adjust the active/archived status in CERCLIS as
necessary.
31 Report No. 9100116
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APPENDIX 1
SCOPE, METHODOLOGY, AND PRIOR AUDIT COVERAGE
SCOPE AND METHODOLOGY We conducted this audit from March 1998, to January
1999. To accomplish the objectives, we conducted
fieldwork in Headquarters OSWER and in Regions 2,
3, 5, 9. OSWER officials provided us with the
universe of sites Superfund officials deferred to the
RCRA program. We analyzed this CERCLIS data
and selected the four regions based on the total
number of deferrals, the status of state corrective
action authority, and the number of sites not
appearing in RCRIS. Headquarters OSWER officials
provided input for the regions we selected.
An OSWER official provided us with a CERCLIS 3
listing of 2,941 deferrals to RCRA as of
March 6,1998. We provided the list of deferrals to
RCRA officials to analyze and tell us which sites were
in RCRIS and their status in RCRIS. In April 1998,
RCRA officials analyzed the data and divided the
sites into four groups: (1) sites that had been deferred
and fell into the corrective action workload, (2) sites
that were subject to corrective action but were not in
the corrective action workjoad (subject to sites), (3)
sites that were not subject to corrective action and
were called RCRA handlers, and (4) sites that had
been deferred but did not appear in the RCRIS
database. We chose not to review the corrective
action workload sites because GAO had recently
performed a review of this population in a report
entitled,"Progress Under the Corrective Action
. Program Is Limited, But New Initiatives May
Accelerate Cleanups," (GAO/RCED-98-3) in October
1997 and we believe it appropriate to give the Agency
time to address the recommendations.
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For the three remaining groups, the sites subject to
corrective action, the RCRA handlers, and the sites
not in RCRIS, we selected a random sample in each
group in each region for file reviews. While we
selected separate samples in the subject to and
RCRA handlers groupings, we reported on them as
one group in this report because we found sites that
were subject to corrective action in the RCRA
handlers group.
For our randomly selected sites, we reviewed
Superfund site assessment files for discovery dates
(dates that EPA became aware of the sites),
preliminary assessments of environmental conditions
and site inspections, deferral documentation, HRS
scoring, and other site assessment information. We
also reviewed selected RCRA corrective action files
for evidence of progression of cleanup of the sampled
facilities where the HRS scores for the facilities were
not completed or were equal to or greater than 28.5
(potentially eligible for NPL consideration) or where
the sites did not appear in the RCRIS database. We
also looked for evidence of the decision to defer and
acceptance of deferral. We interviewed HQ RCRA
and CERCLA staff and managers. We also spoke
with regional officials responsible for the deferral
process in the RCRA and CERCLA programs in
Regions 2, 3, 5, and 9 regarding the controls over the
deferrals to RCRA. We also reviewed removal files
for selected sites to find out whether immediate risks
at certain sites had been addressed. We also
attended a regional decision team meeting in
Region 2 which included Superfund officials. We
identified which states or territories were authorized
for corrective action and which sites were subject to
corrective action according to the Agency's definition
of what it means to be subject to corrective action.
An Office of General Counsel opinion indicates that
the Agency has the ability to have facilities conduct
corrective action if they have, had, or should have
had interim status. Interim status, simply stated,
refers to the status a facility holds between
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application and receipt of a RCRA permit. Interim
status is granted by a state or EPA.
Concurrent with this audit, GAO was conducting an
audit on sites awaiting listing to the NPL. GAO's audit
is related to ours because some of the sites that were
deferred to RCRA remained active in CERCLIS and
would have been included in their population and
because the recommendations may be similar in
nature. The audits differ because most of the sites
that were deferred to RCRA were not in GAO's
population and because GAO's primary goal was to
try to determine how many sites may ultimately be
placed on the NPL and to gather detailed information
on the sites that remained potentially eligible for the
NPL. For the purposes of our review, we only sought
to determine whether the Agency's deferral program
objective was. achieved, whether deferrals were made
in accordance with the policy, and whether
procedures for deferring sites from one program to
another were effective. Because our purpose was
not to determine whether any sites should be added
to the NPL, we did not gather the same information
as GAO did for their review. During our review, we
coordinated with GAO to avoid duplication of efforts.
GAO issued its audit reports entitled, "Unaddressed
Risks at Many Potential Superfund Sites"
(GAO/RCED-99^8) and "Information on Potential
Superfund Sites," (GAO/RCED-99-22) in November
1998.
At the commencement of our audit, we also
considered reviewing sites that had been deferred
from RCRA to Superfund. We performed limited work
in Region 2, but excluded them from our audit scope
because there was no commonality between these
deferrals and the sites deferred to RCRA and
because of limited resources. We may consider
further work on these deferrals at some future date.
We also reviewed 7 NPL sites and 27 sites
deproposed from the NPL that were deferred to
RCRA. We chose not to report on these sites as they
generally appeared to be progressing.
34 Report No. 9100116
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PRIOR AUDIT COVERAGE
We reviewed Federal Managers Financial Integrity
Act documentation related to the audit objectives.
We did not evaluate all of the controls over RCRIS
data, but we sought to verify data in RCRIS for
selected sites by asking state officials for status of
cleanup of facilities. We also attempted to verify the
accuracy of RCRIS corrective action data by
reviewing selected RCRA files. Like GAO, we did not
validate state responses by performing site visits or
file reviews because our recommendations will
include state participation in ensuring that human
health and environmental risks have been or will be
addressed.
The OIG issued an audit report in January 1994,
entitled, "Program Enhancements Would Accelerate
Superfund; Site Assessments and Cleanup" (Report
No. 4100180). This report evaluated many of the
sites then awaiting listing to the NPL and potential
actions for addressing the backlog. One of the
recommendations was that the Agency consider
deferring sites to other federal authorities. Agency
officials generally agreed with these '
recommendations.
GAO issued an audit report in October 1997, entitled,
"Progress Under the Corrective Action Program Is
Limited, But New Initiatives May Accelerate
Cleanups" (GAO/RCED-98-3). This report evaluated .
the cleanup completions of the corrective action
workload in the RCRA program. This report
concluded that, "the step by step process for cleanup
is drawn out and cumbersome and the cost of
implementing it discourages companies from initiating
more cleanups. Protracted disagreements among
EPA, the states, and affected companies over the
cleanup standards to be met and the methods used
to meet them have also delayed cleanups. Both of
these factors can contribute to the economic
disincentives that companies face in performing
cleanups. Furthermore, these two problems are
exacerbated by the limited resources EPA and the
states have for implementing the [Corrective Action}
35
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program." GAO generally recommended that EPA
reform the program to make it more streamlined and
consistent nationwide. EPA generally agreed to
these recommendations.
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APPENDIX 2
DETAILS OF SITES INAPPROPRIATE FOR DEFERRAL
Using a weighted projection, 67 percent, or 1003 of
the 1,388 sites in the sample universe were
inappropriate for deferral. (210 of the 313 sampled
sites were facilities that were inappropriate for
deferral to RCRA.) This appendix describes the
seven categories of sites that were inappropriate for
deferral. The table below summarizes the categories
we identified, the number of sites in each category,
and the corresponding projection
PROJECTION OF SITES INAPPROPRIATE FOR
DEFERRAL
Type of
Inappropriate
Deferral
Sites That
Converted
Before
Deferral
Sites That
Converted
After Deferral
Other
Converted
Sites
(Conversion or
Deferral Date
Unknown)
Non- or Late
Filers
Number
Found
69
9
96
8
Weighted
Projection to
Universe
254
20
585
33
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Type of
Inappropriate
Deferral
Protective
Filers
Generators
Pre-HSWA
Permittees
Totals
Number
Found
22
6
0
210
Weighted
Projection to
Universe
80
31
0
1003
The first three categories of sites that were
inappropriate for deferral were converters.
Converters are facilities that at one time treated or
stored RCRA Subtitle C hazardous waste but have
since converted to generator-only status or closed.
EPA or the states granted this change of status. The
first category are those sites that converted before
deferral, and the second category are those sites that
converted after deferral. The third category are
converted sites where the conversion or deferral date
was unknown. While converters remain technically
subject to RCRA corrective action, Agency officials
believed that deferral of converters was not
appropriate. Because they were no longer active
TSDFs, they were not a priority for prompt corrective
action under RCRA. The Agency believed
converters, should be placed on the NPL to ensure
prompt corrective action, when certain listing criteria
are met.
We identified eight facilities in the fourth category of
sites inappropriate for deferral, non- or late-filers.
Non- or late-filers did not file or filed late for a RCRA
permit and have little or no history of compliance with
RCRA. Though these sites may be subject to RCRA
corrective action, EPA decided that these facility
owners generally may not have the ability to assure
prompt compliance with RCRA standards. As a
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result, EPA decided that it is not appropriate to defer
non- or late-filers to RCRA.
Twenty-two sites were found in the fifth category of
sites inappropriate for deferral: protective filers.
Protective filers are facilities that filed as a TSDF as a
precautionary measure, but were determined by a
state or EPA not to be a TSDF. Protective filers are
not subject to RCRA subtitle C; therefore, RCRA
cannot order a site to take corrective action except
where hazardous waste has caused an imminent and
substantial endangerment to human health or the
environment.
Six of our sampled sites were in fact generators and
comprised the sixth category of sites inappropriate for
deferral. Generators are not subject to RCRA
corrective action and, according to the policy, would
continue to be placed on the NPL
Though we did not identify any, the seventh category
of sites that were inappropriate for deferral were sites
holding permits before the enactment of HSWA.
Such facility owners had permits that predated
corrective action requirements and would not agree to
a voluntary reissuance of the permits to include such
requirements.
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APPENDIX 3
INFORMATION ON SITES NOT INAPPROPRIATE FOR DEFERRAL
During our exit conference, Agency officials requested
that we characterize the sites that we found not to be
inappropriate for deferral. The chart below describes
the results of that characterization. For all of the 103
sampled sites below, we found insufficient information
in the files to conclude that the sites were
inappropriate for deferral based on the policy.
Description of 103 Sites Not Inappropriate for
Deferral
Characterization
TSDF Status Unclear
Closed and Requested
Change of Status But
No Approval Found
Facilities Undergoing
Closure
Interim Status Facilities
Facilities Filed Part A
and B But Permit Not
Yet Received
Permitted
EPA Discussing TSDF
Status with Facility
Total
Number
46
19
14
16
4
2
2
103
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For the first 46 sites, the status of these facilities was
unclear from the documentation we reviewed during
fieldwork. In these cases, it was unclear whether
facilities notified or filed and were considered
generators or TSDFs.
Thirty-three (33) of the 103 sites that were in the
"Closed and Requested Change of Status But No
Approval Found" or "Facilities Undergoing Closure"
groups were moving toward closure or conversion to a
status other than TSDF. These sites would eventually
be appropriate for consideration under CERCLA since
they will likely convert and are not in the corrective
action workload.
The 16 sites that appeared to be in interim status, the
four facilities that filed both parts of the RCRA permits
to be TSDFs but, based on the documentation we
obtained, had not yet received their permits, and the
two permitted facilities would be appropriate for
deferral. These facilities should be in the corrective
action workload because, according to the
documentation we obtained, they are seeking or had
obtained permits to operate as TSDFs.
EPA was discussing the TSDF status of the final two
sampled sites, according to documentation we
obtained. Until EPA resolved the TSDF status of
these two facilities, we cannot comment on the
appropriateness of these two deferrals.
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APPENDIX 4
AGENCY RESPONSE AND OIG EVALUATION
AGENCY RESPONSE
MEMORANDUM
, SUBJECT: Response to Draft OIG Report Superfund Sites Deferred to RCRA!
Audit Report E1SFF8-11-0006-DRAFT
FROM: Timothy Fields, Jr. (Signed March 23, 1999)
Acting Assistant Administrator
TO: Michael Simmons
Deputy Assistant Inspector General for Internal Audits
Office of the Inspector General
This memorandum transmits the Office of Solid Waste and Emergency Response's
(OSWER) comments on the subject draft audit report by the Office of the Inspector
General (OIG). We appreciate the OIG's thorough review of the process of deferring
Superfund sites to RCRA; we feel the audit findings and recommendations will be helpful
in improving the efficiency of the deferral process.
In a March 4, 1999 meeting with the OIG, staff from both the Superfund and RCRA
programs raised issues regarding various aspects of the draft report. In follow-up to that
meeting, OSWER provided informal comments on the draft. We received a revised draft
on March 17 which incorporated many of our preliminary comments. Please note that
this written response does not address many of the minor comments discussed during
the March 4 meeting or those submitted prior to the revision of the draft report. Rather,
it addresses larger issues concerning the presentation of the OIG's findings, and the
assumptions made during the audit.
The draft audit report identifies discrepancies'between Superfund Hazard Ranking
System (HRS) scores and RCRA National Corrective Action Prroritization System
(NCAPS) rankings for the sites deferred to RCRA. The OIG concluded that a re- ;
examination of the prioritization of sites is needed as a result of these discrepancies.
However, both the Superfund and RCRA programs agree that there are fundamental
42 Report No. 9100116
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differences between the HRS and NCAPS ranking systems that do not support
comparisons of a score or ranking. The HRS generates a numerical score which must
be above a certain threshold to warrant Federal Superfund interest, while NCAPS
prioritizes a site relative to other RCRA sites and takes into account specific solid waste
management units that are not addressed by the HRS. Furthermore, NCAPS rankings
are updated more frequently than HRS scores to reflect current site conditions.
Therefore, priority ranking under RCRA may decrease as a result of response actions
taken at a site while the HRS score will remain the same, jt is important to note in the
final audit report that these prioritization systems were developed for very different
purposes and may not necessarily yield comparable results at sites scored under both
systems.
The OIG states in the draft report that less than 2 percent of the deferred sites have
been "cleaned up." This term is rather ambiguous and could refer to several different
types of site conditions. We would like this to be clarified in the final report so that the
entire statement reflects the actual status of those sites. Most importantly, what
standards were applied in order to make the determination that the remaining 98 percent
have not been "cleaned up"?
/
In the draft report, the OIG suggests that the Superfund site assessment process will be
the primary tool for re-evaluating the sites that were inappropriately deferred to RCRA.
Similarly, the draft report implies that the HRS will be the primary tool for prioritization
and that Superfund decisions will be made at all of these sites. However, the OIG
should recognize that if these sites are to be re-evaluated under Superfund, it is unlikely
that all of them will be, or will need to be, cleaned up with Superfund resources. There
are currently more than 10,000 sites in the active CERCLIS inventory needing
assessment decisions, and on average, an additional 400 sites come to EPA's attention
each year. Any inappropriate deferrals that return to Superfund for reassessment will be
prioritized in the context of all other active sites needing assessment, and according to
the threat the site poses to human health and the environment. We believe EPA has
already conducted a Preliminary Assessment at virtually all of the sites OIG has included
in the draft report; field sampling and Site Inspections have also been conducted at a
large percentage of these sites. OSWER would like to note that Superfund decisions
have been made at over 35,000 sites since the program was created, however, only 4
percent (less than 1,500 sites) have been placed on the National Priorities List for long-
term cleanup under the Superfund program.
Chapter 4 of the draft discusses OIG's inability to locate the 253 "Status Unknown"
facilities in the RCRIS system. While it is possible that this resulted in part, as
suggested by OIG, from system incompatibilities, OIG's overall premise that each of the
253 should have appeared in RCRIS may be flawed. RCRIS contains data on over
250,000 facilities that, by the Agency's records, ever handled hazardous waste. The
43 Report No. 9100116
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absence of any of the 253 from RCRIS could be explained by the fact that they never
handled hazardous waste. Chapter 4 needs to acknowledge this possibility.
After reviewing the draft report, OSWER has some suggestions on presenting the data
in a format that readers may more easily comprehend. A possible method of clarification
would be the use of graphics, such as pie charts or graphs, to represent the most
complex data (i.e., to more clearly state when the report is referring to a random sample,
as opposed to the four-Region sample or the total National universe of deferrals).
Another possibility may be a "data glossary" as an additional appendix, so that any
figure in the report could be easily defined.
After reviewing the audit findings, OSWER notes that the draft report clearly indicates a
need for improved communication and coordination between the Superfund and RCRA
programs in all EPA regional offices. We are prepared to reassess many of the site
management decisions identified by the audit to ensure that EPA and State agency
response efforts provide the highest level of protection of human health and the
environment.
Thank you for providing the opportunity to comment on the draft report. If you have any
questions regarding our written response, please contact Elizabeth Harris, OSWER
Audit Liaison, at (202) 260-7323.
cc: Sharon Hallinan
Liz Harris
Jennifer Griesert
Anne Andrews
Barbara Braddock
Bill Samuel
Judy Vanderhoef
Barry Parker
Tina Lovingood
DIG EVALUATION
The Acting Assistant Administrator for Solid Waste and Emergency Response indicated
that there are fundamental differences between the HRS and the NCAPS ranking
systems that do not support comparisons of a score or ranking. The Acting Assistant
Administrator requested that we note in the final report that these prioritization systems
were developed for very different purposes and may not necessarily yield comparable
results at sites scored under both systems.
As requested, we added language to the report to explain why these scores might be
different. However, the NCAPS system was based on the HRS, and while their
44 Report No. 9100116
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purposes might be different, they are both indicators for potential threats to human
health and the environment. Accordingly, until the current environmental threat posed
by sites with different scores can be determined, the Agency cannot be certain of
whether there is cause for concern. To assist the review process, we will provide
OSWER staff with the specific data for sites with differing scores.
The Acting Assistant Administrator also commented that the draft report suggested that
the Superfund site assessment process will be the primary tool for re-evaluating the
sites that were inappropriately deferred to RCRA. He also believed the draft report
implied that the HRS will be the primary tool for prioritization and that Superfund
decisions will be made at all of these sites.
The OIG did not intend to imply that Superfund site assessment will be the primary tool
for reassessment of sites. In fact, in the draft report, the OIG supported the NPL/RCRA
policy when it suggested a multi-program approach to addressing sites. We also
suggested a cooperative approach to include states in any evaluations of sites that
would take place. The OIG recognizes the limited resources of Superfund, RCRA and
state programs. We also recognize that legal authority is a factor in any decisions EPA
may need to make for reassessing sites when necessary. We believe that both
resources and legal authority must be considered when determining how best to
proceed. For example, just because a particular state may have legal authority does not
mean it has the resources to address the sites.
We also recognize, as OSWER staff pointed out at the exit conference, that the
corrective action workload is the priority for RCRA and is the reason many of these sites
may not have been addressed. For EPA RCRA officials to address these sites would
take resources away from those needed to achieve RCRA's GPRA goal of addressing
the corrective action workload.
The OIG also agrees with the Acting Assistant Administrator that not every site may
need to be reevaluated, and that those that do need reevaluation should be prioritized
for any potential listing to the NPL Preliminary assessments, and in some cases, site
inspections or other assessments have been conducted for these sites. However, we
found that much of the data is several years old, and OSWER and state officials should
give some consideration to increases in potentially affected populations (or targets) and
uses of the potentially affected properties.
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APPENDIX 5
DISTRIBUTION
OSWER Audit Liaison (5103)
Director, State and Tribal Site Identification Center (5204G)
Deputy Director, State and Tribal Site Identification Center (5204G)
Deputy Director, Office of Solid Waste (5301W)
Acting Director, Permits and State Programs Division (5303W)
Associate Director, Permits and State Programs Division (5303W)
Chief, Corrective Actions Program Branch (5303W)
Superfund Reforms Coordinator (5204G)
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APPENDIX 6
ENDNOTES
1. Sites are coded in RCRIS with the Corrective Action Event Code "CA999," or "CA Process
Terminated."
In addition, in its October 1997 report entitled, "Progress Under the Corrective Action
Program Is Limited, But New Initiatives May Accelerate Cleanups" GAO defined, and in its
response EPA did not disagree that, using the code CA999 meant that cleanup was completed.
If the CA999 code was not used, then cleanup was not completed, for the purpose of defining
the remaining 98 percent of sites.
2. "Guidance for Performing Preliminary Assessments Under CERCLA," EPA/540/G-91/013,
September 1991, pages 16-19.
"Superfimd Program Implementation Manual, Fiscal Year 99/00," June 1998, pages A-6 to
A-24: -
3. OSWER Directive 9932.0, "Method for Prioritizing CERCLA Preliminary Assessments at
RCRA Facilities," May 31,1988.
OSWER Directive 9932.1, "Guidance for Environmental Priorities Initiative (EPI) Facilities
in the Superfund Pre-Remedial Program," January 31,1989.
Memorandum from Mary A. Gade, Deputy AA for OSWER, "Environmental Priorities
Initiative - Headquarters Responsibilities and Upcoming Activities," February 11, 1991. .
4. Memorandum from J. Winston Porter, AA for OSWER and Courtney M. Price, AA for
OECM, "Interpretation of Section 3008(h) of the Solid Waste Disposal Act," December 16,
1985.
5. Memorandum from Stephen D. Luftig, Director, Office of Emergency and Remedial,
Response, and Michael H. Shapiro, Director, Office of Solid Waste, "Removing RCRA Facilities
from CERCLIS," June 21,1995.
Memorandum from Larry G. Reed, Director, Hazardous Site Evaluation Division and Linda
Boornazian, Director, Policy and Program Evaluation Division, OSWER, "Refining CERCLIS
Archive Determinations," July 6,1995.
Memorandum from Robert Myers, Acting Chief, Site Assessment Branch;, OSWER
"Transmittal of CERCLIS Archive Materials: Site Lists and Guidelines," July 14,1995.
Guidance entitled "CERCLIS Archive Guidelines," October 1996.
Memorandum from Stephen D. Luftig, Director Office of Emergency and Remedial
Response, "Archiving CERCLIS Sites," November 13,1996.
47 Report No. 9100116
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DATE DUE
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