United States
Environmental Protection
Agency
Solid Waste and
Emergency Response
(OS-100)
Publication 9202.1-07
September 1992
&EPA SUPERFUND:
Report of the
EPA Superfund Revitalization
Public Meeting Held on
June 24,1992
Volumes 1 and 2
Prepared by Clean Sites
Under a cooperative agreement
with U.S. Environmental Protection Agency
Recycled/Recyclable
Printed on paper that contains
at least 50% recycled fiber
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Publication 9202.1-07
September1992
SUPERFUND:
Report of the
EPA Superfund Revitalization
Public Meeting Held on
June243 1992
Volume 1
CXJ
o_
USEPA Was? Building
Headquarters Repository
1301 Constitution Avenue N.W.
Room 3340 - Maiicode 3404T
Washington, DC 20004
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TABLE OF CONTENTS
VOLUME I
EXECUTIVE SUMMARY i
INTRODUCTION 1
I. OPENING PLENARY SESSION 2
Opening Presentation 2
Superfund Revitalization Initiative 2
Superfund Accelerated Cleanup Model 3
Questions and Comments from the Public 3
II. SUGGESTIONS FROM THE PUBLIC ABOUT
ADDITIONAL WAYS TO SPEED THE CLEANUP PROCESS 4
Site Evaluation and Studies 4
Risk Assessment and Reduction 4
Approach to Remedy Selection 5
Cleanup Standards 6
Proposal for a Two Stage Remediation Process 6
Settlement and Enforcement 6
Communication and Access to Information 7
Superfund Program Management and Staffing 8
Contractor Issues 8
IH. WAYS TO ENCOURAGE AND
MANAGE VOLUNTARY CLEANUPS BY PRPS 9
Current Impediments to Voluntary Cleanups 9
Proposed Actions or Incentives to Promote Voluntary Cleanups 10
Standards for Voluntary Cleanups 11
Alternatives for Oversight and Cleanup Certification 12
Examples from State Programs 13
IV. EFFECTIVE WAYS TO INVOLVE THE STATE,
THE COMMUNITY, AND OTHER INTERESTED PARTIES
IN THE SUPERFUND CLEANUP PROCESS 13
Who Represents the Community? 13
Educating the Community about the Superfund Process 14
Trust-Building Efforts and Sharing Site Information 14
Technical Assistance Grants (TAGs) 15
The Need for Cooperation and Joint Efforts Among Stakeholders 16
PRP Efforts to Involve the Community 16
PRP Concerns 16
State Issues 17
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V. WAYS TO REALISTICALLY DESCRIBE THE EXPECTATIONS
OF THE SUPERFUND PROGRAM, MEASURE SUCCESS IN
ACHIEVING PROGRAM GOALS, AND COMMUNICATE THESE
GOALS AND SUCCESSES TO INTERESTED PARTIES 17
Describing and Meeting Superfund Program Expectations 17
Ways to More Effectively Address the Issue of Risks Posed by Sites 18
Measuring Success 18
Communicating Accomplishments 19
VI. CONCLUDING PLENARY SESSION 19
SUMMARY OF STEPS EPA WILL TAKE
AS A RESULT OF THIS PUBLIC MEETING 20
VOLUME II
Meeting Agenda Attachment A
EPA Panelists Attachment B
List of Meeting Attendees Attachment C
Attendees' Written Comments Attachment D
Submitted By:
Burlington Northern Railroad
Environmental Strategies Corporation
FSDWAC for Environmental Concerns, Inc.
Hazardous Waste Action Coalition
Monsanto Company
National Groundwater Association
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EPA SUPERFUND REVITALIZATION PUBLIC MEETING
EXECUTIVE SUMMARY
In the often contentious world of hazardous waste site cleanups, the need for accelerating
cleanups is one idea on which all the major constituencies EPA, potentially responsible parties
(PRPs), and the public can agree. EPA is interested in making faster headway through the ever-
growing list of waste sites while ensuring cleanup effectiveness and equity. The PRP
community's interest is to ease management burdens and minimize costs through a faster and
more efficient cleanup process. Finally, the actual beneficiary of the Superfund program, the
public, has an equally great interest in a faster site cleanup program. An expedited cleanup
process means decreased exposures to potentially harmful substances and less disruption of
community life.
To solicit suggestions on how to speed up the Superfund cleanup process, EPA and its
Superfund Revitalization Office invited people to a public meeting on June 24,1992, in
Washington, D.C. The meeting was attended by representatives of industry, state and local
governments, communities, environmental groups and other constituencies involved in the
cleanup process. In addition to receiving general suggestions on how to expedite the Superfund
cleanup process, EPA targeted three specific topics for discussion in breakout sessions. These
topics were: ways to encourage and manage voluntary cleanups by PRPs; effective ways to
involve the states, the community, and other interested parties in the site cleanup process; and,
ways to describe the expectations of the Superfund program, measure success in achieving
program goals, and communicate the goals and successes to interested parties.
Because people from many different perspectives attended the meeting, no effort was made
to develop consensus or to prioritize concerns or suggested solutions. Recognizing that a broad
spectrum of views were expressed, the following is a summary of certain central themes.
* EPA received numerous recommendations on how to expedite the Superfund process.
These suggestions covered the topics of site evaluation and site studies, risk assessment
and reduction, remedy selection, settlement and enforcement, and program management
and staffing. Observations and suggestions included the following:
o EPA should streamline the procedures for site characterization and studies by using
professional judgement to focus data collection on what is needed to assess
contamination risks, and by using parallel rather than sequential steps during the
remedial investigation/feasibility study (RI/FS) process where possible.
o In conducting risk assessments, EPA should use a more science-based, less
hypothetical methodology. EPA should focus on reducing "real risks" by
intensifying efforts to identify and mitigate actual and imminent threats to human
health and the environment.
o Remedy selection should be based on balancing risk management goals rather than
on the assumption of permanent remedies, should explore the idea of presumptive
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cleanup standards for commonly found site contaminants, and should consider,
where appropriate, future land use, passive natural solutions, and innovative
technologies.
a In the realm of settlement and enforcement, EPA should not demand strict
adherence to model decrees and orders, but should tailor these instruments to
specific site requirements. Furthermore, EPA should do a more thorough job of
identifying and providing information to PRPs, make greater use of mixed funding
and non-binding allocations of responsibility, and should pursue recalcitrant PRPs
rather than relying on joint and several liability.
o Superfund program management should be structured to foster predictability. EPA
should make a concerted effort to retain qualified staff, stress adherence to agency
guidance, and endeavor to enforce the program uniformly.
The issue of voluntary cleanups received great attention, and the participants shared a
number of observations and recommendations. The suggestions addressed current
impediments to conducting cleanups on a voluntary basis, proposed incentives for
encouraging voluntary cleanups, standards for use in conducting such cleanups, and
oversight and certification issues. Observations and suggestions included the following:
o Current impediments to voluntary cleanups include the unrealistic and onerous
scope of existing state voluntary cleanup programs, the difficulty of obtaining
insurance coverage for a voluntary action, and the absence of any degree of
certainty or finality in terms of liability for a party conducting voluntary actions.
o Proposed incentives to promote voluntary cleanups included deferring the National
Priorities List (NPL) process for those parties conducting good faith voluntary
cleanup actions, furthering the use of presumptive remedies, and developing
administrative incentives and providing resources to promote acceptance of
voluntary actions within EPA Regions.
a EPA needs to develop objective standards for voluntary actions and must make
clear the role of states in voluntary cleanups. Suggestions for standards to be used
included using the National Contingency Plan (NCP) as the baseline criterion, and
basing the standards on future land use considerations.
a A process needs to be developed for oversight and certification of voluntary
cleanups. Suggestions for such a process included use of a non-government
agency, development and use of EPA audit teams, use of state re-opener authority
and post cleanup assessments, and having PRPs pay for EPA oversight of
voluntary cleanups.
Because EPA recognizes that inclusive processes generate greater confidence and trust, the
Agency devoted one of its breakout topics to suggestions about how to involve the states,
the community, and other interested parties in the Superfund cleanup process.
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Suggestions were offered that addressed the importance of educating the public about the
Superfund process, sharing site information, the utility of Technical Assistance Grants
(TAGs), and the need for cooperation and joint efforts among the stakeholders.
Observations and suggestions included the following:
a EPA would engender greater trust by endeavoring to educate the community about
the Superfund process and the standards for action taken under Superfund. This
could be achieved by providing information about the Superfund process written
in user-friendly vernacular rather than legalistic program terms, and using video
tapes that explain the Superfund process, the TAG process, and the rights of the
public.
o To facilitate constructive community involvement, it is imperative that EPA
provide data to the community in a timely manner - the earlier, the better. This
can be done through a variety of electronic and print mediums. It can also be
achieved in information-sharing settings where EPA not only disseminates
information but also listens to and thoughtfully considers citizen suggestions and
concerns.
a EPA should be more aggressive in making the community aware of the availability
and purpose of TAGs, make the TAG process less cumbersome and more flexible,
and increase the dollar value of TAGs.
o EPA needs to endorse a more cooperative and less antagonistic approach and
attitude among all parties; the cleanup process would be greatly accelerated if all
parties worked together. In addition to more cooperation with each other, both
EPA and PRPs need to work to gain the community's trust.
Historically, there has been no clear consensus on the specific goals of the Superfund
program, so EPA sought input on desired expectations and accomplishments for the
program. Attendees offered the following suggestions pertaining to describing and
meeting expectations, measuring program success, and communicating accomplishments:
o The word "cleanup" is misleading and creates unrealistic expectations. Rather, the
program's stated goal should be to advance the protection of human health and the
environment through risk management.
o Program-wide and site-specific measures of accomplishment are needed. Rather
than counting sites deleted from the NPL, program-wide measures should focus on
accomplishments in terms of total corrective action being done at large. Site-
specific accomplishments should be measured by relative reduction in site risk, not
by whether calculated risk-based residual concentrations have been reached. A
bean-counting approach to measuring success should be avoided.
a EPA should use several means to communicate the program's accomplishments.
The Agency should make more aggressive use of public outreach and should
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foster more open processes, access to information, and accessibility of Agency
staff to create greater public confidence. Efforts to communicate program
accomplishments should describe removal and remedial successes as well as the
many obstacles facing the Agency.
* During the concluding session, the Agency reminded the audience that the Superfund
Hotline exists to answer questions and respond to requests for information. The telephone
number is 800-424-9436.
* Based on the ideas and suggestions heard by EPA at the meeting, the Superfund
Revitalization Office will take steps to address specific recommendations in the following
areas:
o Defining and fostering voluntary cleanups;
o Increasing public participation;
a Clarifying state participation;
a Communicating Superfund program expectations;
o Facilitating information exchange among TAG recipients;
a Collecting and communicating information about non-NPL cleanups; and,
a Convening more public forums, along the lines of the June 24, 1992 forum, in the
EPA Regions.
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REPORT OF THE
EPA SUPERFUND REVITALIZATION PUBLIC MEETING
June 24,1992
INTRODUCTION
On June 24,1992, the U.S. Environmental Protection Agency (EPA) and its Superfund
Revitalization Office held a meeting to encourage public participation in identifying innovative,
non-traditional approaches to expedite the Superfund cleanup process. The Superfund
Revitalization Office, created by EPA's National Superfund Director Richard J. Guimond and
headed by Timothy Fields, is tasked with achieving EPA Administrator William K. Reilly's goal
for Superfund: reduction of the greatest amount of risk to human health and the environment in
an effective, efficient, and equitable manner.
The meeting, held in Washington, D.C., was attended by over 150 individuals representing
corporations, outside counsel, local citizen's groups, state and federal government agencies,
environmental groups, environmental equity groups, trade associations, hazardous waste cleanup
consultants, the press, and other organizations interested in Superfund. In an effort to receive
input from community groups, EPA made available sufficient funds to cover travel and
accommodation expenses for 15 representatives of local citizen or environmental equity groups.
Clean Sites, under a cooperative agreement with EPA, assisted in the development of the meeting
agenda, arranged for and facilitated the meeting, and prepared this report.
Attendees expressed views that were diverse and sometimes contradictory. No effort was
made to reach consensus at the meeting or to prioritize or rank the suggestions made. Because
the goal was to have a fairly informal discussion, no record of attribution was kept of the oral
comments.
The agenda was structured to focus on four particular topi; areas under the general
umbrella of speeding up Superfund cleanups: ways to speed up the Superfund cleanup program
(in addition to the initiatives currently underway); ways to encourage and manage voluntary
cleanups by potentially responsible parties (PRPs); effective ways to involve the State, the
community, and other interested parties in the entire Superfund cleanup process; and, ways to
realistically describe the expectations of the Superfund program, measure its success in achieving
the program's goals, and communicate these goals and successes to interested parties. The
agenda served to focus discussion during the breakout sessions and allowed EPA to solicit
suggestions for improving the program relative to these topic areas.
This report, organized along the lines of the topics outlined above, documents suggestions
that were made by attendees at the meeting, as well as written comments that were prepared
specifically to address the issues discussed at the meeting. The report attempts to reflect those
issues that received the greatest attention during each breakout session. The subheadings for
each breakout session were added to organize the suggestions by issue. Because of the diversity
of opinions expressed, ideas sometimes contradict one another. This report also provides a
summary of EPA follow-up actions currently under consideration. The meeting agenda, list of
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EPA panelists, list of attendees, and written comments in their entirety, follow as attachments to
this report.
I. OPENING PLENARY SESSION
Opening Presentation
The meeting opened with a brief presentation by Don R. Clay, Assistant Administrator,
EPA Office of Solid Waste and Emergency Response (OSWER). In his presentation, Mr. Clay
gave an overview of the current status of the Superfund program. Highlights noted were as
follows:
o The removal program is the success story of the national program. In addition, the
rate of National Priorities List (NPL) construction completions is almost one a
week, and EPA projects 650 construction completions by the end of the decade.
The long-term investment in Superfund is now paying off with results.
a The debate on Superfund Reauthorization has already started and is likely to be
long and complex; thirteen separate Congressional committees will be
participating. EPA will vigorously implement and apply the existing law until
such a time that Congress should decide to change the law.
Superfund Revitalization Initiative
Richard J. Guimond, Deputy Assistant Administrator of OSWER, gave an update on the
Superfund Revitalization Initiative:
a When the revitalization effort began, the Revitalization Office operated as a small
work group to identify issues for discussion. The Office is now listening to a wide
range of people to consider diverse views. EPA is holding this meeting as the
culminating event in a long process to ensure that the Agency has received input
from all affected communities. The Revitalization Office has met with all EPA
Regions, state program staff, responsible parties, environmental and citizen
groups, and Congressional staff. EPA intends to consider all cross sections of
expressed concerns related to the Superfund program and synthesize all the
disparate, conflicting views in the hope of speeding up the program and making
sure the program is working as effectively as possible.
o EPA needs to standardize remedies commonly applicable at certain types of sites in
order to ensure faster action.
a EPA needs to develop plans and goals for each site and articulate these goals earlier
in the process in order to limit uncertainty and confusion related to site cleanup.
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o EPA needs to develop a desirable approach for voluntary cleanups and to provide
incentives to encourage more voluntary cleanups.
Superfund Accelerated Cleanup Model
Henry Longest gave a brief presentation on the Superfund Accelerated Cleanup Model
(SACM).
o The purpose of the SACM approach is to get more sites to completion faster. An
example of one area where EPA can reduce some time is the one-step site
screening stage. At present it can take 5-6 years to get past this stage.
a EPA should take immediate efforts to reduce the risk to human health and the
environment; removal actions should be taken if necessary to accomplish this goal.
a EPA needs to communicate the long-term goals and intentions for a site so that the
community is informed about what is occurring at the site. EPA should also make
sure there is early community involvement so that the community can take early
action.
o More money should go toward actual site cleanup rather than studies and
duplicative assessments, as is frequently the case.
o Suggested program changes include: reducing the time it takes to get to an action,
making early action decisions sooner in the process, maximizing the use of the
National Contingency Plan (NCP), taking parallel rather than sequential actions,
and having all sites come in through one door rather than through the site
assessment, the remedial action, or the removal action door.
Questions and Comments from the Public
Following the EPA presentations, time was allowed for questions and comments from the
public. Many of the questions asked and comments made were repeated in later breakout
sessions, and are included later in the report. Other comments specific to SACM follow:
o States favor SACM because it will target many more sites than are currently on the
NPL. EPA should consider authorizing certain states with well-developed
programs to conduct cleanups using federal funds; those without well-developed
programs would be subject to EPA oversight.
a The management structure of SACM is over delegated. More attention should be
given to implementing the model in the Regions at the decision-making level.
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H. SUGGESTIONS FROM THE PUBLIC ABOUT ADDITIONAL WAYS TO SPEED
THE CLEANUP PROCESS
Following the EPA presentation on efforts currently underway to streamline the Superfund
process, the meeting divided into three breakout sessions to receive additional suggestions from
the public on ways to accelerate the Superfund cleanup process. A number of suggestions were
made which are organized into subgroups below. Several themes are common to the subgroups
below, including issues involving risk assessment and reduction, remedy selection, and
communication between and among constituencies in the cleanup process. Suggestions that
relate specifically to voluntary cleanup, interested party involvement, and program measures and
accomplishments, are included under the appropriate sections later in the report.
Site Evaluation and Studies
a The procedures for site characterization should be streamlined and standardized.
o Make full use of existing hydrogeologic information (even if it was collected
without Superfund protocol but is professionally reliable).
o Overall cleanup costs can be reduced by avoiding over design on the remedial
investigation/feasibility study (RI/FS); use professional experience and judgement
to focus data collection on what is truly needed to assess contamination risks.
a The RI/FS process is much too lengthy and wasteful, considering that the
contamination at most sites is not very complex. Considerable cost savings could
be realized if parallel development of steps in the RI/FS process took place where
possible.
o Minimize requirements for legal protocols (formal plans, approvals, lengthy
documentation) unless court action is likely.
Risk Assessment and Reduction
a EPA should recognize that the science of risk assessment is imprecise and that
standard guidance documents reflect an excessively conservative approach. EPA
should revise and communicate risk and exposure assessment guidance that
permits use of more science-based, less hypothetical methodology.
o EPA should ensure that site assessments done by Regional offices use the modern
methods developed and advocated by the Office of Research and Development,
and now used by industry and independent consultants.
o The EPA Regions need to be more accurate and consistent in their interpretations of
risk assessments and to achieve uniform administration of risk-based criteria, e.g.,
what level of risk warrants capping.
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o EPA should intensify efforts to identify and mitigate real and imminent threats to
human health and the environment (make use of safe alternate water supplies
and/or treatment to prevent or avoid exposure/risks).
a Risk levels need to be developed for the environment as well as for human health.
a Allow PRP participation in the risk assessment process.
o EPA should develop an incremental risk reduction plan at each site.
Approach to Remedy Selection
o A definition of "permanent remedy" needs to be developed that considers industry's
assertion that "permanence" is not achievable in many cases. Opinion leaders also
should consider the policy alternative of basing remedy selection on balancing risk-
management goals rather than on the assumption of "permanent remedies."
a Innovative technologies should be reserved for use at special sites, and should not
be used at standard sites.
a EPA should encourage the demonstration and application of innovative
technologies by (1) providing financial support to technology developers for
testing technologies and documenting the results, (2) restricting liability associated
with technology development and use, and (3) limiting cleanup costs for property
owners and other responsible parties who agree to implement promising
innovative technologies.
a PRPs should be willing to fund technical evaluations (e.g., pilot tests) of innovative
alternative remedies.
o The Agency should favor employment of natural passive solutions over costly
active remediation to minimize and manage risks where possible (often less
intense solutions are at least as effective and less costly than sophisticated
engineered projects).
o EPA needs to simplify the decision making process for cleanups: do not conduct an
extensive cleanup if people are not exposed to contaminants; determine the
exposure before determining if there is risk; and, select a remedy commensurate
with future exposure and land use.
o EPA should agree to limit the circumstances under which applicable or relevant and
appropriate requirements (ARARs) are not required to be met by the record of
decision (ROD).
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Cleanup Standards
o Government and the private sector should explore the technical and policy issues
around the concept of a "presumptive standard" for all common site contaminants.
In particular, the need for public input into the standards chosen for this use would
be critical.
o EPA should promote national cleanup standards to provide a target for remediation
achievement.
Proposal for a Two Stage Remediation Process
o EPA should divide the remediation process into two steps: identification and
removal of immediate threats, followed by a more thorough assessment of future
risks and remediation based on a balanced consideration of risk management
options appropriate to a site.
A EPA should formalize its tentative description of the remediation process as
taking place in two stages. This should be done through a formal rule-
making process. A procedure for carrying out first-stage evaluations and
actions should be developed, followed by a procedure for second stage
assessment, including a process for selecting cost-effective permanent
status.
A EPA should then announce the number of sites for which first-stage actions
are complete, and a timetable for completing such actions at all remaining
NPL sites. If any of these sites lack ATSDR Health Assessments, these
sites should be given highest priority for completion. EPA should provide
an annual public report of the status of first-stage actions, and publicize it
adequately.
Settlement and Enforcement
o EPA should send out notice letters to more than a handful of PRPs, including to
those parties whose names are provided by current PRPs. EPA also should
aggressively pursue recalcitrants instead of relying on joint/several authority.
o EPA should make information about why a party received a 104(e) letter more
readily available, and do better research before sending 104(e)'s, because it is
difficult for PRPs to get out of the process once they are in it.
a To promote the early formation of a PRP group, EPA should provide early access
to PRP lists, waste volume, and ranking information. Many of the NPL sites now
being addressed primarily involve PRPs with shares too small to warrant investing
resources to put together a PRP group. EPA should commit to reaching more de
minimis settlements by educating small businesses about Superfund and helping
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coalesce small-share PRPs by making information about other PRPs, such as
contact names and telephone numbers, readily available.
a EPA should commit to performing timely nonbinding allocations of responsibility.
o PRPs should be willing to take the lead at sites, even if they are not the PRP with
the largest share.
o EPA should use more mixed funding to pay for cleanups at sites with orphan
shares.
o EPA should be willing to assume some risk at some sites by limiting PRP liability
after a certain level of cleanup.
a EPA should discuss the terms of the administrative order on consent with the PRPs,
rather than having the PRPs back off because they cannot agree to the terms of the
standard order.
o Consent orders should be standardized; at present they are very different and very
onerous. The terms of model consent decrees should be made more reasonable;
currently, they bog down the process by forcing PRPs to challenge every phrase
and line.
a EPA should not demand strict adherence to model decrees/orders, but rather should
tailor instruments to site requirements.
o Checks and balances should be put in place for enforcement of consent decrees; at
present, EPA is the judge and jury of all disputes.
Communication and Access to Information
a Citizens want to know what the future land use of a site will be once the cleanup is
complete, and regard almost any use (industrial, recreational) as better than no use.
a EPA should convene a workshop to talk about communication between
stakeholders and should sponsor a national forum on broader issues of
communication, including distinguishing between state and federal roles.
o EPA should apply the good methods of communication employed in the RCRA
program to Superfund.
a Set up an "exchange program," whereby EPA and industry staff are detailed to each
other's jobs to gain a different perspective.
o Lending institutions need guidance on how to interpret risks.
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Superfund Program Management and Staffing
a EPA should develop a system to organize, disseminate, and update its guidance
documents and to eliminate redundant and conflicting guidance. Guidance
documents should be treated as guidance rather than as standards of practice to
allow flexibility in dealing with site-specific conditions. EPA should send at least
one Headquarters person around to the Regions to achieve a national policy
direction at the local level.
o A more stringent training program for agency managers must be installed with a
specific guidance that leaves out personal interpretation or emotion.
a The technical people in charge of the federal and state programs must ensure that
the programs are uniformly enforced and have understandable guidance.
a EPA should consider delegating decision making responsibility to a lower level,
provided those individuals are equipped to make and deal with those decisions.
EPA should have someone at the regional level with the ability to make decisions
early; the site could still go through the hazard ranking process later.
o EPA needs to take measures to retain experienced project managers. PRPs could
assist this effort by funding an incentives program to retain experienced EPA
personnel as remedial project managers (RPMs). EPA should encourage full
involvement of section chiefs to ease RPM transitions and to facilitate appeals.
o EPA should commit to timely execution of site-related reviews and decisions to
expedite the project, with approvals by default if these are not executed on time.
o Industry and communities need predictability from the cleanup program; EPA
should use the New Jersey state program as an example of the kind of
predictability with which industry can live.
o Allow one government agency only to lead the project.
o In appropriate situations, coordinate with state and local authorities who have
responsibility over water development and land use (to minimize the likelihood of
inappropriate development and inadvertent exposure to contaminants).
o State concurrence should be sought on a cleanup plan.
Contractor Issues
o EPA should make some of the requirements for certification less burdensome for
laboratories that evaluate site test data.
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a EPA should limit the number and activities of oversight contractors. For example,
EPA should remove incentives for contractors to argue on behalf of EPA against
the PRPs' positions and findings.
a EPA should exercise discipline on documentation of Agency and contractor costs to
be recovered from PRPs, with acceptance of audit protocols.
a Preemptive federal legislation should establish negligence as the standard by which
both federal and state courts judge the liability of hazardous waste consultants.
HI. WAYS TO ENCOURAGE AND MANAGE VOLUNTARY CLEANUPS BY PRPS
EPA opened the session by observing that there are two categories of sites that potentially
lend themselves to voluntary cleanups, meaning those cleanups performed prior to enforcement
action by EPA. In the first category are those sites that are destined to be addressed by EPA
eventually. In this case, PRPs can conduct a voluntary cleanup faster than if the site was left to
EPA. Second are those sites that are unlikely to become priority sites for EPA. In this case,
PRPs want to clean up the site and be released from any future liability. The problem lies in the
question of who is willing to bear some risk. Suggestions addressing voluntary cleanups were
offered by members of the public, and they are organized under the subheadings below.
However, some issues that cross-cut the subtopics below received a lot of attention, including the
roles of federal and state governments in voluntary cleanups, standards for voluntary cleanups,
and processes and structures that would foster voluntary cleanup actions by PRPs.
Current Impediments to Voluntary Cleanups
a Existing programs for voluntary cleanups are unrealistic in scope. Currently, state-
required actions for voluntary cleanups are often more onerous for PRPs than
Superfund enforcement orders. PRPs are interested in voluntary cleanups because
they are looking for expediency and cost effectiveness, but they find that it is very
frustrating to volunteer.
a Voluntary cleanups are impeded by the RCRA requirement for a permit for on-site
treatment.
a Voluntary cleanups will occur only if EPA comes to terms with Superfund remedy
selection standards and makes them more realistic. There should be a "differential
standards" approach to cleanup based on future land use. Industry is willing to
return the land to industrial use standards.
o PRPs are seeking a reasonable degree of certainty that EPA will not ask them to
take any more actions in the future for a site that has been cleaned up voluntarily.
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o Citizens lack trust in PRP control of contractors and data collection without proper
government oversight. There is currently not enough public money available for
quality state or federal oversight of voluntary actions.
o EPA cannot overlook the problem of insurance coverage. It may be difficult to get
insurance coverage for a cleanup, whether or not it is sanctioned by EPA.
Proposed Actions or Incentives to Promote Voluntary Cleanups
o The Agency should devise and install a procedure to foster voluntary and
accelerated corrective action. The Regions should reassign a project officer to
implement this alternative, providing administrative review, approvals, and a
streamlined approach much less bureaucratic than under the NCP. The procedure
should provide for:
A A streamlined remedial investigation/feasibility study (RI/FS) process,
limiting study cases and allowing staged remedies even as the RI/FS study
is being completed.
A Simple administrative reviews and approvals, as opposed to the more
elaborate NCP process (RI/FS, ROD, remedial design/remedial action
(RD/RA).
A Agency agreement to defer action on NPL listing where PRPs agree to clean
up, with any possible site scoring deferred until after such cleanup action.
A Agency agreement to restore NPL sites after cleanup, and delete if
warranted, if PRPs proceed voluntarily in advance of Agency action on an
enforcement approach (section 104 letters, section 106 orders).
A Agency commitment to support cost-effective decisions on remedy,
balancing risk and permanence. Stabilization and containment should not
be unduly discouraged as long as risk is addressed, particularly where
present technology for permanence is unproven or costly. Once stabilized
and if residual risk warrants, technology development should commence
and be implemented when developed.
A For NPL sites, EPA agrees to use its authority under CERCLA section 121
to set aside RCRA requirements for accelerated actions given
administrative approval.
o EPA could establish a task force to develop methods for encouraging, managing,
and providing oversight for voluntary cleanups.
o EPA needs to define different categories of site types and let PRPs know the
category into which each site falls. PRPs do not always know if a site will become
of interest to EPA.
a EPA needs to build more flexibility into the Administrative Order on Consent;
otherwise there is no benefit or advantage to volunteering to conduct cleanups.
Use the Kennecott Copper agreement-in-principle as a model: the Agency agrees
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not to list the site on the NPL and the PRP agrees up front to perform a full
cleanup in compliance with the NCP.
From a cost recovery point of view, EPA needs to grant some assurance to
companies that the cleanup action taken will be good enough to induce other
parties to share in the cost.
The government should make the cost of voluntary cleanups tax deductible.
EPA should advocate that the Regions take on management of voluntary cleanups
and receive credit for their efforts. Administrative incentives should be created to
promote voluntary cleanups and to provide Regions with resources to negotiate
and implement voluntary enforcement orders.
EPA should encourage states to promote voluntary cleanups because both citizens
and the state benefit.
Standards for Voluntary Cleanups
The voluntary cleanup process should be tied to performance standards; either a
PRP meets the performance standards or it does not. EPA also should further the
use of presumptive remedies.
The NCP should be used as the baseline criterion for voluntary cleanups. If a
company conducts a voluntary cleanup consistent with the NCP, it should be able
to seek an opinion from EPA indicating whether the cleanup is or is not consistent
with the NCP. A company that is conducting a voluntary cleanup can generate
information and have EPA review that information as it is generated.
EPA needs to establish objective criteria with respect to what constitutes
compliance with standards for voluntary cleanups, but these do not yet exist.
Therefore, voluntary cleanups are risky ventures.
EPA should provide protection from RCRA standards (applied through ARARs)
for PRPs performing voluntary cleanups.
EPA needs to consider future land use when developing standards for voluntary
cleanups.
EPA must make clear the role of the state in voluntary cleanups, and the state must
be party to consent decrees for voluntary cleanups. EPA should consider that state
programs generally have clear guidelines or standards that EPA needs to accept as
appropriate.
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Alternatives for Oversight and Cleanup Certification
a EPA should develop and follow national guidance for oversight on voluntary
cleanups.
a If EPA does not have the resources to confirm certifications provided by PRPs,
EPA should spend resources on establishing the criteria for voluntary actions and
determining the extent to which the criteria have been met after the cleanup has
occurred.
o EPA can have different levels of oversight for different levels of sites and risks.
a EPA should employ audit teams to monitor voluntary cleanup efforts, certify that
the cleanup meets accepted standards, and identify recalcitrant parties. These
auditors could perform the same function as IRS auditors. Each site does not need
rigid EPA or state oversight.
o PRPs should pay for EPA oversight of voluntary cleanups.
o Voluntary cleanup efforts would work if EPA, the PRP, and the contractors agreed
to a workplan and all the protocols at the outset of the process. EPA could make
the voluntary party certify that the party has followed the protocols agreed to up
front.
o Consider having a non-government agency certify the credibility of the voluntary
cleanup.
a Government agencies and the community should conduct oversight throughout the
entire cleanup process in order for citizens to have faith that the problem is being
properly addressed. If oversight is not performed until after the voluntary action is
complete, citizens fear that the cleanup action will be cursorily certified.
a The government needs to provide money to guarantee effective oversight. In states
that have an abundance of sites (such as New Jersey, which has over 50,000
needing assessment), a site that is remediated voluntarily will likely never be
revisited.
o Most states have re-opener authority for cleanup efforts, voluntary or otherwise. If
states make it clear to the parties conducting the voluntary cleanup that further
assessment will be performed after the voluntary cleanup action, this would serve
to ensure that the cleanups are performed well.
o If EPA or the state is not involved, have the PRP use a professional engineer as the
project manager and use that person's credentials as assurance for doing a credible
job.
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Examples from State Programs
EPA should use the Massachusetts state program as an example of how to manage
voluntary cleanups. Under that program, the State addresses sites with the most
severe threats. Less severe threats are addressed through the voluntary cleanup
approach, whereby the responsible party receives a permit, and the fees are used to
help fund the State's oversight activities. PRP site managers applying for permits
must be licensed by the State.
EPA should consider the New Jersey program. Voluntary actions in New Jersey
are subject to the same standards as non-voluntary actions. Parties conducting
voluntary cleanups enter into a Memorandum of Agreement with the State. The
parties are free to exit the Memorandum of Agreement at will under the conditions
that they provide all site data to the State, do not leave the site in worse condition
than when they started, and pay agency oversight costs. This allows the party to
deal with any portion of the site that they want to. New Jersey's voluntary cleanup
program is a good example of how to establish guidelines for risk assessment and
for determining what levels of risk are acceptable for given types of sites.
IV. EFFECTIVE WAYS TO INVOLVE THE STATE, THE COMMUNITY, AND
OTHER INTERESTED PARTIES IN THE SUPERFUND CLEANUP PROCESS
EPA opened the session by stating that communities need to be provided with more
complete information and that state and local entities need to be more involved in the Superfund
cleanup process, but that their involvement must be balanced with the need for accelerating the
cleanup. Suggestions and remarks were offered by members of the public, and are organized
under subheadings below. Cross-cutting issues that were discussed at length included trust-
building efforts among the disparate constituencies in the site cleanup process (including
educating the community about the cleanup process and sharing site information), and Technical
Assistance Grants (TAGs).
Who Represents the Community?
o PRPs often have difficulty identifying which citizens are interested in site
remediation and are the appropriate ones with whom to work.
a Residents around sites usually believe that citizen groups are representative of the
community and that they provide the most reliable information.
a When seeking to identify active citizens in the community, PRPs should first check
with EPA to find out if any TAGs have been awarded in the area.
a Meeting with local officials is not the same as communicating with the community.
Local officials sometimes have their own considerations.
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Educating the Community about the Superfund Process
o Communication pertaining to Superfund is made difficult because the language
includes a lot of jargon. EPA needs to educate citizens about Superfund and what
the standards are for actions taken under Superfund. Levels of trust are low
because citizens have not been adequately informed about what is occurring at the
site near them. EPA could provide information about the Superfund process that
reads like stories (e.g., a University of Tennessee study) to enable the layperson to
gain an understanding of how the process works.
a Video tapes of the site cleanup process have worked as an effective device for
communication and education. EPA could produce video tapes that explain the
Superfund process, the TAG process, EPA contacts, and the rights of the public.
EPA should make these tapes available through the information repositories.
Trust-Building Efforts and Sharing Site Information
o It is imperative that EPA provide data to the community in a timely manner. To
avoid putting the community on the defensive and to facilitate constructive
community involvement, EPA should identify and involve citizens in the process
when EPA suspects there is a problem at the site rather than waiting until the
problem has been confirmed. At the earliest stages in the process (preliminary
assessment/site investigation), citizens should also be provided an opportunity to
contribute information to assist the EPA in developing a realistic site scenario.
o EPA also should communicate with citizens during the Administrative Order on
Consent (AOC) and Consent Decree (CD) processes. Information on AOCs and
CDs are not made available to the public until the information goes to the
Department of Justice. When the CD is issued, citizens have inadequate time to
comment (only 30 days), given the volume of information.
o EPA cannot assume that the community trusts the government or the PRPs. EPA
needs to work on having respect for the community. A good example of respect
for community interests is a Department of Energy (DOE) site in Albuquerque,
where DOE signed an agreement that allows community groups to have oversight
of environmental studies being conducted.
o EPA could utilize various ways of providing information to the community such as
a newsletter, an electronic mail system, site focus sheets, monthly outlines of site
activities, and information displays in novel places (such as shopping malls), and
other new approaches for reaching people.
o EPA should share information in open settings where a variety of opinions are
heard. Public meetings are too abstract. EPA public meetings are rarely effective
because EPA usually does all the talking. Citizens feel that EPA does not listen to
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their suggestions or concerns; there needs to be a process to ensure that EPA takes
to heart the recommendations of the community.
EPA Headquarters needs to pass along news of hearings and other information-
sharing forums to the Regions, which in turn should pass them along to citizens
groups.
Allowing the citizenry to observe the remediation while it is occurring helps
diminish citizen fears because it demonstrates openness. Community groups
should also be involved in oversight of cleanups.
EPA needs to let the community know when nature is expected to decrease the
level of contamination, even if it is with the help of bioremediation.
All EPA information regarding the site should be sent to the TAG recipient group
free of charge.
County health departments should be educated as to what is required of them and
how to properly convey the information to the appropriate agency.
Conveying "startling" information should never be left in the hands of local
officials, as they are often inexperienced and/or biased and only serve to confuse
the issue.
Technical Assistance Grants (TAGs)
TAGs are a tool for community empowerment, but the process is far too
cumbersome and actually delays community participation. Grass roots
organizations need seed money to help overcome initial organizational and
administrative hurdles. The TAG application process needs to be more flexible,
and it should not take so long to get a final ruling on the TAG application.
EPA should be more aggressive in making the community aware of the availability
of TAGs. EPA should educate citizens about the purpose of the grants and the
grant application process. EPA should sponsor more TAGs and get them out to
the community earlier in the process.
EPA should increase the dollar value of TAGs. Contractor expenses and travel
costs quickly consume the TAG. EPA should also remove the matching fund
requirement for TAGs because it is difficult for many communities to come up
with the money. Money should also be made available for people to write grants;
this would enable more people to receive the grants.
EPA should sponsor a TAG recipients' newsletter to enable a dialogue between
groups, e.g., to share information between sites with similar contaminants.
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The Need for Cooperation and Joint Efforts Among Stakeholders
a EPA's enforcement office needs to endorse a more cooperative approach and
attitude. Too much money is wasted in endless debates between EPA and PRPs.
o The Superfund approach is built on antagonism. Communities are kept at arms
length. The cleanup process would be greatly accelerated if all parties involved
would learn to work together. EPA and PRPs should consider using a team
approach as an alternative. In this approach, as soon as PRPs are identified, PRPs,
the public, and regulators get together and agree on a set of rules and protocols
that will be used throughout the project. They can review documents together, etc.
This does not result in any more costly remedies, and can even avoid transaction
costs.
o Local and county officials should be made aware of the need for and significance
behind the involvement of its citizenry.
PRP Efforts to Involve the Community
a PRPs need to take trust-building steps such as putting public notices in papers,
having meetings with the community, and providing citizens with funds to hire
independent experts to review work such as remedial action.
a PRPs can satisfy the public need for site information by making high-level
management people available for a variety of public forums.
o PRPs seeking to understand community concerns should not send outside lawyers
or technical experts to represent them in talking with the community, because this
alienates the community.
PRP Concerns
o EPA and the states should put an emphasis on PRP identification as early as
possible. Failure to do so causes the entire system to bog down.
o At sites with many PRPs, the companies are driven by their own fear of the PRP
allocation process. The financial risk inherent in such a process limits PRPs'
desire to be open with the public.
o The PRP community fears that more public participation will necessarily result in
more litigation.
o Respect and trust can be jeopardized by PRPs' over-emphasis on speed and EPA's
inflated promise to the community of cleanup standards. The program's emphasis
should be placed on efficiency, effectiveness, and equity.
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State Issues
EPA needs to clarify the role of states in the Superfund Accelerated Cleanup Model
(SACM). SACM will involve many more sites than are currently on the NPL, and
the federal government does not have the resource base to address all sites
adequately. Under SACM, the state should work with EPA early in the decision-
making process.
States rely on EPA for staffing needs in the form of one year grants. EPA should
consider multi-year CORE grants in order to meet state staffing needs over more
than just a one-year period.
V. WAYS TO REALISTICALLY DESCRIBE THE EXPECTATIONS OF THE
SUPERFUND PROGRAM, MEASURE SUCCESS IN ACHIEVING PROGRAM
GOALS, AND COMMUNICATE THESE GOALS AND SUCCESSES TO
INTERESTED PARTIES
EPA opened the session by explaining that the Agency has had some difficulty conveying
to the public what the Superfund program is accomplishing. This is due in part to the fact that
there has been no clear consensus on what the specific goals of the program should be, and,
historically, these goals have been a moving target. In addition, the public has very high
expectations when it comes to hazardous waste cleanup. EPA particularly sought input from the
public on what the expectations and accomplishments should be for the Superfund program, and
the ideas and suggestions offered are organized under the subtopics below. Again, several issues
occur as cross-cutting themes across these subtopics; these pertain to success measurements for
the Superfund program, health risks and risk communication, and suggested proactive efforts by
EPA to communicate the accomplishments of the Superfund program.
Describing and Meeting Superfund Program Expectations
a The goal of the Superfund program should be to advance the protection of human
health and the environment through risk management.
o EPA should address expectations explicitly, e.g., clearly state what the remedial
investigation will determine, what the probable next steps will be, and how the
different constituencies fit into the decision tree.
o Be clear in communicating to the public what can be done immediately, and what
cannot; e.g., exposure can be reduced and controlled, but other problems will take
longer to resolve. Try to avoid alarming the community, e.g., during the early
action phase tell people what is going to take place, why, and what they can expect
as a result.
a Avoid using the word "cleanup", as it creates unrealistic expectations; "risk
reduction" is one alternative possibility. Modify the program expectations from
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"cleanup" to "management" of ground water contamination (adequate to protect
human health and the environment cost-effectively).
o Public understanding of the process can be achieved more effectively by bringing
the community into the process and allowing the public a part in decision making.
Ways to More Effectively Address the Issue of Risks Posed by Sites
o The public needs to be made aware that risk involves a lot of grey areas and
uncertainty. Although there may be a disparity between actual risk versus the
perception of risk, to the community living next to the site, any risk is both too
much and too close.
o Find a better way to articulate risk and risk reduction than using scientific notation,
which most people find difficult to interpret; describe risk in terms that the average
person can relate to; e.g., exposure to a certain level of contamination carries the
same risk as drinking a certain amount of diet soda, or pumping your own gas over
a period of time. Use risk communication experts for guidance on communicating
risk.
o Develop a better way to measure risk reduction, perhaps along the lines of the
Hazard Ranking System.
Measuring Success
o Program-wide measures of accomplishment are needed in addition to site-specific
measures. Examples include: measuring accomplishment in terms of total
corrective action being done at large, rather than counting sites deleted from the
National Priorities List; showing accomplishments in public health and risk
reduction by indicating how many cleanups are on schedule and by breaking the
process down into discrete, explicit stages, e.g., how many sites are being
monitored for water quality; and, including the large universe of state-lead and
voluntary cleanups when counting the Superfund program's accomplishments,
since these cleanups are driven largely by the existing statute and regulations.
o The success of a cleanup should be judged by its relative reduction in site risk and
cost effectiveness, not by whether calculated risk-based residual concentrations
have been reached.
a Merger agreements and due diligence measures performed for property transfers
may include information on cleanup actions that also should be counted by the
Agency.
a Set up a "report card" system for communicating current and future risks and how
they will be managed.
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a Survey PRPs and communities to rate how well the Agency dealt with them, e.g.,
"EPA was an effective manager of the Superfund process at my site" - Strongly
Agree; Agree; etc.
a Protective levels should be linked to actual risk studies of effects on public health.
a Avoid measuring success by quarterly bean counting.
Communicating Accomplishments
o Citizens generally do not understand the terminology used to characterize program
success. The public must be well educated about the cleanup process before it can
successfully interpret the program's accomplishments.
o EPA should communicate the program's accomplishments more aggressively
through more public outreach, by using television spots, public relations, press
releases, etc., rather than leaving this to the press.
a EPA needs to make the community more aware of removal actions and what they
have accomplished, and be sure to tell people where the waste is going. Since
removals are often visually arresting, video tape them to be shown on local TV
news shows.
o Foster more open processes, access to information, and accessibility of Agency
staff in order to foster confidence and credibility with the public.
o EPA also needs to communicate the obstacles the Agency is up against, e.g., the
average number of sites assigned to each project manager in each of the Regions.
a Find a way to quantify the value of voluntary cleanups as compared to the cost of
enforcing and carrying out an Agency cleanup.
o Translate EPA information into appropriate foreign languages in areas where there
is a large immigrant population.
VI. CONCLUDING PLENARY SESSION
The meeting concluded with a brief overview by Richard J. Guimond, Deputy Assistant
Administrator of OSWER and National Superfund Director, regarding his impressions of what
had been accomplished. He outlined what he believed were some of the most notable aspects of
the day's proceedings:
The meeting provided a very good opportunity for discussion among the diverse
interests represented. His expectation for the meeting had been to hear three or
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four good ideas, but he had heard many more than that; a number of ideas were
associated with the issues of communication and facilitating impediments to
cleanup. The Agency will look into how these ideas might intersect with other
ideas for the program.
It was clear there is an interest in what would be the role of the states and the
opportunity for public participation in the new SACM program. He believes there
should be more public forums done in various parts of the country, and that the
Agency will try to do this over the next year.
The new program should not go too far on what might turn out to be the wrong
path; it is Mr. Guimond's intention to experiment with pilot programs in order to
get some idea of "customer satisfaction." EPA welcomes feedback in order to get
a better handle on what are the right goals for the Superfund program.
Everyone should be aware that there is a Superfund Hotline designed to provide
information and staffed by individuals prepared to answer questions, find out
answers, and provide documents. The telephone number is 800-424-9436.
Another source of information is Bob Knox, the RCRA/ Superfund Ombudsman,
who can be reached at 202-260-9361.
SUMMARY OF STEPS EPA WILL TAKE
AS A RESULT OF THIS PUBLIC MEETING
As a result of the input received from participants in the Superfund Revitalization Public
Meeting, EPA has developed a list of the most important suggestions it proposes to address and a
list of actions to be taken with respect to those suggestions. The Superfund Revitalization Office
and Office of Solid Waste and Emergency Response (OSWER) are already addressing concerns
and suggestions made in other areas. The suggestions to be addressed, and proposed actions
follow:
Voluntary Cleanups
Develop criteria for site inclusion
Define what "voluntary cleanup" means
Define the role of PRPs and EPA with respect to citizen involvement
Define a strategy for the initiation of such cleanups
State the Agency's position
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Public Participation
Identify the "public" more clearly
Identify how to involve the public more effectively
Develop less formal methods of disseminating information
Identify ways to provide greater access to information
Define the role of PRPs in public participation
State Participation
Clarify the impact of S ACM on State programs
Define the State role within the context of SACM
Consider delegating certain sites fully to States to avoid duplicative efforts
Program Expectations
Communicate the overall site plan and schedule to citizens at the outset of the site
cleanup process in order to foster trust and cooperation
Communicate up front to citizens the anticipated post-site-cleanup land use
Foster coordination between Site Assessment, Removal and Remedial programs
Technical Assistance Grants (TAGs)
Initiate and help develop a newsletter for information exchange among TAG
recipients
Initiate and foster the development of a network among TAG recipients
Promote learning from TAG successes and failures
Data Collection and Communication About Non-NPL Cleanup Activities
Removals
State cleanups
Voluntary cleanups by PRPs at own sites
Communicate these accomplishments to Congress and other interested parties
Regional Public Forums
Convene three or four meetings across the country modeled after the June 24,1992
public forum
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Publication 9202.1-07
September 1992
SUPERFUND:
Report of the
EPA Superfund Revitalization
Public Meeting Held on
June 24,1992
Volume 2
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Additional copies of this document, OSWER Publication No. 9202.1-07, may be
obtained from the Superfund Hotline (703) 920-9810 or (800) 424-9346, or from the
Superfund Document Center (202) 260-9760.
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TABLE OF CONTENTS
VOLUME II
Meeting Agenda Attachment A
EPA Panelists Attachment B
List of Meeting Attendees Attachment C
Attendees' Written Comments Attachment D
Submitted By:
Burlington Northern Railroad
Environmental Strategies Corporation
FSDWAC for Environmental Concerns, Inc.
Hazardous Waste Action Coalition
Monsanto Company
National Groundwater Association
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Attachment A
Meeting Agenda
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U.S. ENVIRONMENTAL PROTECTION AGENCY
SUPERFUND REVITALIZATION TEAM
Open Forum Agenda
Approaches to Speeding-Up the Superfund Process
The Washington Mairiott Hotel
1221 22nd Street, N.W.
Washington, D.C. 20037
June 24, 1992
8:30 - 9:00 Registration
9:00 - 10:30 Opening Plenary - Dupont Ballroom
Welcoming Remarks: Don Clay
Overview and Purpose of Meeting: Nancy Newkirk
Superfund Revitalization Initiatives: Richard Guimond
Superfund Accelerated Cleanup Model: Henry Longest
Questions/Comments from the Public on the Presentation
Panelists: Don Clay, Richard Guimond, Bruce Diamond, Timothy Fields,
Henry Longest
10:30-10:45 Break
10:45 - 12:00 Concurrent Morning Breakout Sessions: Suggestions from the Public about
Additional Ways to Speed Up the Cleanup Program
Session 1 - Salon F; Facilitator: Nancy Newkirk
Panelists: Richard Guimond, Walt Kovalick, Tom Voltaggio, Sally
Mansbach
Session 2 - Salon G; Facilitator: Daniel P. Dozier
Panelists: Bruce Diamond, Timothy Fields, Kathy Callahan, Steve Luftig
Session 3 - Salon H; Facilitator: Melinda J. Holland
Panelists: Henry Longest, Elaine Stanley, Jody Traub, Jerry Clifford, Bill
White
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12:00-1:00 Lunch Break
1:00 - 2:30 First Concurrent Afternoon Breakout Session
Breakout Session A - Salon F: Ways to Encourage and Manage Voluntary
Cleanups by PRPs
Facilitator: Nancy Newkirk
Panelists: Bruce Diamond, Steve Luftig, Jerry Clifford, Bill White, Tom
Voltaggio
Breakout Session B - Salon G: Effective Ways to Involve the State, the
Community, and Other Interested Parties in the Superfund Cleanup Process
Facilitator: Melinda J. Holland
Panelists: Henry Longest, Peggy Knight, Kathy Callahan, Sally Mansbach,
Margaret McCue, Karen Burgan
Breakout Session C - Salon H: Ways to Realistically Describe the
Expectations of the Superfund Program, Measure Success in Achieving
Program Goals, and Communicating These Means to Interested Parties
Facilitator: Daniel P. Dozier
Panelists: Richard Guimond, Timothy Fields, Walt Kovalick, Elaine
Stanley, Jody Traub
2:30 - 2:45 Break
2:45 - 4:15 Second Concurrent Afternoon Breakout Session
Breakout Session A - Salon F: Ways to Encourage and Manage Voluntary
Cleanups by PRPs
Facilitator: Daniel P. Dozier
Panelists: Elaine Stanley, Walt Kovalick, Bill White, Kathy Callahan
Breakout Session B - Salon G: Effective Ways to Involve the State, the
Community, and Other Interested Parties in the Superfund Cleanup Process
Facilitator: Nancy Newkirk
Panelists: Rich Guimond, Peggy Knight, Jody Traub, Sally Mansbach,
Margaret McCue
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-3-
Breakout Session C - Salon H: Ways to Realistically Describe the
Expectations of the Superfund Program, Measure Success in Achieving
Program Goals, and Communicating These Means to Interested Parties
Facilitator: Melinda J. Holland
Panelists: Timothy Fields, Steve Luftig, Tom Voltaggio, Jerry Clifford,
Karen Burgan
4:15-4:30 Break
4:30 - 5:00 Concluding Remarks and Follow Up Actions
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Attachment B
EPA Panelists
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Approaches to Speeding-Up the Superfund Process
Open Forum
Panelists
Don Clay
Richard Guimond
Bruce Diamond
Henry Longest
Walt Kovalick
Bill White
Tim Fields
Elaine Stanley
Steve Luftig
Peggy Knight
Kathy Callahan
Tom Voltaggio
Jody Traub
Sally Mansbach
Jeny Clifford
Karen Burgan
Margaret McCue
Assistant Administrator, Office of Solid Waste and Emergency Response
(OSWER)
Deputy Assistant Administrator, OSWER
Office Director, Office of Waste Programs Enforcement (OWPE)
Office Director, Office of Emergency and Remedial Response (OERR)
Office Director, Technology Innovation Office (TIO)
Director, Office of Enforcement (OE)
Director, Superfund Revitalization Office (SRO)
Deputy Director, OWPE
Deputy Director, OERR
Director of Public Liaison
Division Director, Emergency and Remedial Response Division, Region II
Division Director, Hazardous Waste Management Division, Region III
Acting Director, Office of Superfund, Region V
Division Director, OWPE - CERCLA Enforcement Division
Division Director, OERR - Hazardous Site Control Division
Director, Communications Staff, OSWER
Director, Office of Public Affairs, Region V
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Attachment C
List of Meeting Attendees
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EPA Superfund Public Meeting
Adams, William D.
Alavi, Ali
Amber, Jerome S.
Anderson, Thomas R.
Apgar, Michael
Arlington, John G.
Aulakh, Bikram
Aylward, Linda S.
Barald, Patricia A.
Barr, Marcia
Berger, Donavee
Bluestein, Ross
Bradford, William
Briggum, Sue
Bryant, Christopher
Burda, Melvin L.
Burton, Ellison
Carey, Walter W.
Chenault, Elmer
Chiaro, Preston
Cooper, B. E.
Craddock,John H.
Cull, Catherine
Darst, Guy
Davis, Larry
Daw, Andrew Keith
Degostaro, Bob
Derezin, Michael
Dimet, Loren
Dixon-Williams, Judy
Eidsness, Frederic A.
Elisburg, Donald
Exner-Rader, Bonnie
Farrelly, Mathew C.
Feeney, Ralph C.
Fischer, John
Foley,Jane
Foresman, Michael R.
June 24,1992
List of Attendees
Affiliation
U. S. Department of Health & Human Services
Clean Sites, Inc.
Ford Motor Company
LaPorte County Environmental Association
National Ground Water Association
American Insurance Association
Panos Institute
Sundstrand Corporation
Covington & Burling
Aluminum Company of America
McCutcheon, Doyle, Brown & Enerson
National Toxics Campaign
Michigan Department of Natural Resources
Waste Management, Inc.
Weinberg, Bergeson & Neuman
Burlington Northern Railroad
Dynamac Corporation
Nestle USA, Inc.
U.S. Environmental Protection Agency
Kennecott Corporation
Kennecott Corporation
CMA PCB Panel
Olin Corporation
Pasha Publications
People Against Hazardous Landfill Sites
Rogers, Towers, Bailey, Jones & Gay
CH2M HILL
Center for Policy Alternatives
Counsel, Laborers-Employers Cooperation
AT&T
Canonie Environmental
Laborers AGC Education and Training
Citizens Intelligence Network
Resources for the Future
Amoco Corporation
International City Management Association
Somers Citizens Committee
Monsanto Company
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Franchina, David
Frantz, Robert W.
Galanty, Chris
Gallagher, Hubert M.
Galli, Alfred
Cans, Sheri
Gavora, F. Dee
Gifford, Mike
Gilhousen, Brent J.
Gordon, Paula
Greenhaus, Douglas I.
Gross, Tracie
Hamm, Ben
Hannas, Polly S.
Hanson, Craig
Head, Louis
Hebert, John
Hensen, George
Herleikson, Cindy
Hitt, Stan
Hoellen, Kris A.
Jayne, Roxanne E.
Jennings, Thomas L.
Kadrofske, Alan
Kellogg, Dorothy Allen
Kerbawy, Claudia
Kiely, Carolyn M.
Knox, Bob
Kothari, Bob
Krablin, Dr. Richard
Kruger, Anne
Last, Michael P.
Lee, Sandra
Leech, Geoff
Ligon, Anne
Lingle, Linda
Lunders, Kent
Manekshaw, Sarosh
Manty, Dale
Mason, Robert J.
Matthews, Terry
McClain, Arthur M.
McFarland, William J.
Miller, Lance R.
Miller, Mike
Miller, Robert J.
Piper & Marbury
General Electric Company
Booz Allen & Hamilton
Chemical Waste Management, Inc.
U.S. Environmental Protection Agency
U.S. Department of Commerce
American Petroleum Institute
U.S. Environmental Protection Agency
Monsanto Company
U.S. Environmental Protection Agency
National Automobile Dealers Association
Booz Allen & Hamilton
U.S. Environmental Protection Agency
W.R. Grace & Company
International City Management Association
SouthWest Organizing Project
APB Investigations, Inc.
Putnam, Hayes & Bartlett, Inc.
Clean Sites, Inc.
U.S. Environmental Protection Agency
ASTSWMO
Cohen, Shapiro, Polisher, Shiekman & Cohen
Occidental Chemical Corporation
Connerton, Ray & Simon
Chemical Manufacturers Association
Michigan Department of Natural Resources
Hazardous Waste Action Coalition
U.S. Environmental Protection Agency
Waste Management Environmental Services, Inc.
ARCO
Passaic River Coalition
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo
U.S. Environnmental Protection Agency
Chemical Waste Management, Inc.
Superfund Action Coalition
U.S. Environmental Protection Agency
Citizen-Bunker Hill Site
Pennzoil Corporation
U.S. Environmental Protection Agency
Environmental Strategies Corp.
Matthews Consulting & Construction, Inc.
Union Carbide Corporation
General Motors
ASTSWMO
Browning Ferris
Sundstrand Corporation
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Mitamura, David
Moore, Robert
Muhlebach, George
Murphy, Joan
Neal, Joseph
Nelson, Clifford N.
Nelson, Eric E.
Nelson, Susan
Norgren, Amy
Ottinger, Bob
Page, John
Palus, Nancy E.
Peacock, Marcus
Phillips, Amy
Polakowski, Lucas
Porter, Christopher
Putzrath, Resha
Quarles, John
Rastatter, Clem
Redington, Dennis B.
Reilly, Bemie
Richardson, Diane
Robb, Arthur E., Jr.
Romano, Amy
Ross, Steven T.
Russell, Cheryl A.
Sachdev, Dr. Dev
Sadker, Rob
Saras, Mary Foley
Schulz, Mary
Sepesi, John P.
Simas, John
Sjogren, Sylvia
Smith, P.J.
Solari, Karen M.
St. Claire, Ean
St. Claire, Orville
St. John, Karen
Starcevich, Alan
Steinberg, Marshall
Steinberg, Michael W.
Steuteville, Bill
Stohl, Richard
Stoltzfus, Kevin
Swerdel, Anne
Tabakin, Rick B.
Coalition on Superfund
American Petroleum Institute
CIBA-GEIGY Corporation
Pesticide & Toxic Chemical News
Citizens for Hopkins
The McLaughlin Company
National Association of Attorneys General
Press
Booz Allen & Hamilton
TRW
Tech Three, Inc.
Superfund Report
Jellinek, Schwartz, Connolly & Freshman
Bureau of National Affairs
Washington Internships for Students of Engineering
Organization Resources Counselors, Inc.
Morgan, Lewis & Bockius
VERSAR
Monsanto Company
DuPont
Commonwealth Edison
Baker Environmental, Inc.
Environmental Strategies Corporation
Marathon Oil Company
The Boeing Company
EBASCO Services, Inc.
Piper & Marbury
Halliburton NUS Environmental Corporation
BF Goodrich
Shell Oil Company
CIBA-GEIGY Corporation
Idaho Citizen's Network
Environmental Technology, Inc.
U.S.Department of Agriculture
Tech Three, Inc.
Wind River Associates
Amoco Corporation
OVER-C
Hercules, Inc.
Morgan, Lewis & Bockius
U.S. Environmental Protection Agency
Kennecott Corporation
Verner, Liipfert, Bemhard, McPherson & Hand
U.S. Department of Justice
American Cyanamid Company
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Thomas, Andrew J. General Electric Company
Thompson, Paul National Governors Association
Tonn, Sheri Citizens for a Healthy Bay
Traub, Jodi U.S. Environmental Protection Agency
Trial, Walter Association of Bainbridge Communities
Vidal, Jane Hazardous Waste Action Coalition
Walker, Colin Hazardous Waste Treatment Council
Watson, Elizabeth F. CMA PCB Panel
Weber, Maya Superfund Report
Weston, Sandra J. Fulton Safe Drinking Water Action Committee
White, Jocelyn Environmental Issues Management, Inc.
Witsaman, Terry L. Concerned Citizens of Lake Township
Wolf, Doug Natural Resources Defense Council
Womack, Jimmy Concerned Citizens of Southbend
Zednik, Rick States News Service
Zimmerman, Jeff Neuman & Holtzinger
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Attachment D
Attendees' Written Comments
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BURLINGTON NORTHERN RAILROAD
M. L BURDA, MGR. ENVIRONMENTAL PROJECTS
ENGINEERING DIVISION
9401 Indian Creek Parkway
P.O. Box29136
Overland Park, KS 66201-9136
(913)661-4439
June 23,1992
Memorandum:
Subject: Comprehensive Environmental Response Compensation Liability Act
Areas of Potential Expedition
Burlington Northern Railroad operates in 25 states and 5 EPA regions. The
Superfund process various dramatically from EPA region to region and also
varies significantly from state-to-state where State Superfund Programs have
been spun off of the Federal Program. The whole Superfund Program is quite
erroneous and does not lend itself to expedition of any remedial actions by
potentially responsible parties. (PRP's)
There are several areas that could be improved to help expedite and decrease
the time line and overall expenditures required to complete the Superfund
process. General areas that the system can be improved is Legislative,
Judicial / Enforcement and Technical.
In the Legislative arena as previously mentioned, the Superfund process varies
from region-to-region and state-to-state. This is due to the wide variation in
the interpretation of Superfund legislation and the NCP. In our corporate
case, we can be subjected to 30 different Superfund processes, each with their
own special requirements and additions to deviations from the intended
Superfund Legislation. The question has to be asked by the Legislators and the
special interest groups that may be pressing for additional legislation : Is there
any additional protection of human health and the environment gained by the
additional regulations that are being sought? In many cases, the answer is no.
The criteria and risk associated and developed through EPA Guidance
Documents are sufficient. The levels of health risk that are deemed
protective of human health in the environment are in the 10 to minus 4 to 10
to the minus 6 health risk for additional cancers. Recent studies have shown
that ambient conditions in which we live are subjecting all individuals to
greater risk than these requirements.
The legislative bodies, both federal and state, should strictly review the
regulations for streamlining the process, follow the federally mandated
program and only deviate when specific site requirements are necessary for
the protection of human health in the environment. The Legislative bodies
must additionally be aware of the additional costs that any legislation may
have on society as a whole. These expenses should include not just the cost of
doing business but actual costs and benefits that a program will have to
society. Superfund has been shown to be one of the least beneficial
environmental programs for the costs involved. If this continues, the impact
on business not only will reduced profitability. It also will impact competitive
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capabilities and more importantly, jobs. If a balanced program can be
developed for corporations who know the program, are confident with the
mechanisms by which it works, all would be served. The program can be
implemented in a timely fashion where human health and environment is
protected and the corporations are allowed to survive. Additionally, the
program needs as end point to liabilities associated to past activities that may
have been acceptable and legal actions of disposal at the time they were
released into the environment.
The second area is enforcement. The enforcement process by which Superfund
is implemented is extremely burdensome and very time consuming. The simple
phrase of a "joint and several liability" which was legislatively put into the
act and is interpreted by the enforcement system, has caused the real cost to
society to ever escalate. There is no fairness within the system. The
legislative body indicates to the executive that they did not intend to be fair
but simply to get the environment cleaned up. This again is a noble concept
but the reality of costs, litigation and time spent on this concept has no
benefit to the overall society of the United States.
Additionally, under enforcement is the model consent decrees. The model
consent decrees are intended to expedite the process. What they really do, is
bog down the process because every phase and line of the model is so one-sided
that it must be challenged to protect the inalienable rights of any person under
the government. The model consent decrees generally require the waving of
civil rights. It requires PRP to be totally subjected to unreasonable oversight
and and escalated costs provided by the government. There are no checks and
balances. In all dispute resolution cases, the agency wins as the director of
the region has the final say. When your judge and jury is part of the system,
how can one expect any attempt at a fair trial which is normally allowed under
law. The common law assumes that, your are innocent until proven guilty.
Under Superfund, you are guilty until proven, beyond a shadow of a doubt, that
you are innocent, and even then, the costs incurred by one's public image being
damaged are in no way redeemable or recoverable from the agency through
the judicial system that has damaged the party.
The solution to enforcement problems is to present a more reasonable consent
order and revisit the issue of joint and several liabilities. Develop an
appropriate cause proportioning in relationship to actual damage and
contribution rather than in the total liability as based upon the ability to pay.
The unfunded share was originally intended to be handled by the Superfund
itself. That is why the large sums of money were set aside. The monies were
not intended to be for administrative overview. In general, over 80 percent of
all Superfund monies are spent for administrative activities rather than
cleanup. Part of the administrative fees are the legal fees of the Federal and
State governments.
The time lines that the consent orders take to negotiate and finalize are
stated in the program to be sixty (60) days with a potential sixty (60) day
extension. I personally have never been involved in any consent order
negotiations that has taken less than a year to negotiate and file the final
consent decree with the court systems. BN has one that has been in excess of
two (2) years with over ten months of that time requiring the Department of
Justice to simple file the consent decree with the court systems. In this case,
BN took the risk of moving forward with the work that was agreed to under
the consent order, with a constant reminder from EPA that we were doing this
at our own risk and that all work may have to be redone.
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The enforcement side can also take a more reasonable line with PRPs that are
willing to work within the program. All PRPs are essentially treated as
criminals under the present system. There are some recalcitrant PRPs that do
need to be dealt with in a very stern fashion but for the majority of Corporate
America, and PRPs in general, they are willing to be responsible and handle
their liabilities and responsibilities to clean up environmental sites. These
parties do not need the intense scrutiny of the law by the judicial system
pressed upon them.
The remedy to this situation with the enforcement system, falls on the
legislative body. Again, the legislators must pass realistic laws and
requirements so that the executive branch can write realistic regulations and
enforce a realistic program that will expedite the cleanups.
The third area for probably the greatest reduction in time line and expedition
of the Superfund process is in the technical arena. The technical requirements
placed upon PRPs by the EPA and the State agencies, again, is a non-uniform
hodgepodge of personal, state and federal politics. There is not one program
that can be interpreted as being uniform throughout the. region or state. Each
individual responsible for the management of a Superfund site instills their
own personal beliefs and interpretations of how the process is to work. To
remedy this, a more stringent training program for agency managers must be
installed with a specific guidance that leaves out personal interpretation or
emotion.
A large portion of the misinterpretation or personal beliefs that are instilled
into the Superfund program does not come from the agency personnel
themselves but rather the independent contractors that are hired by the
agencies to provide technical support. There are many good firms that are
well familiar with the Superfund programs both in the Federal and State level.
However, there is no incentive for the agency's contractor to ever end the
work. They are paid for disagreements and arguing on the behalf of the
agencies against the PRPs' positions and findings. I have personally observed
work by Federal and State contractors who are working a site where no PRPs
are present. The work product is far inferior (much less detail and analysis or
proof of remedy selection) to any submittal done on BN's behalf. Is this simply
because there is no one to argue against or to pay the price? The PRP is
forced into the process, which is not expedited but slowed down, while greater
demands are being made by the process.
The following are two recent examples of the flawed process. The examples
involve similar sites with similar contaminants. The first is an agency lead
RI/FS and health risk process which took three years to complete. At the
second site, the PRPs conducted the RI/FS and Health Risk Assessment with
agency's and agency contractor's overview, which required eight (8) years to
prepare.
The work product with a three year effort, without the PRP, was at best, a
disgrace and an insult to anyone reading the document. The flaws within the
prepared documents were enormous. Federal guidance was ignored! Outdated
guidance was used extensively. Conclusions drawn by evidence gained was in
question. The validity of data and analysis was impossible to determine, yet a
cleanup was proposed for the protection of health and environment. The
agency conducting this work will soon demand cost recovery of over
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$2,000,000 for this poor workmanship. The PRP will more than likely have to
start the process over because the work does not meet NCP requirements.
In the eight year process, because the contractors for the Federal agency
involved changed four times, four separate and different remedial
investigations were conducted. When the contractor changed for the fourth
time, back to the original contractor, the RI was accepted. This alone, added
three years to the process, not to mention the additional cost. The remedy
which was proposed in the first year of investigation was finally presented in
the Record of Decision. The question has to be ask, if it was obvious enough
to see the remedy in a one year time line, why did it take eight years to come
to the same conclusion. The answer is simple, the system is too burdensome to
allow the obvious to be implemented.
The three areas that I have just discussed are all tied together tightly. The
Legislation must be clear with little deviation or ability to individually
interpret the requirements set forth in the law. The judicial arm must find a
fair and equitable way to enforce the laws set forth by the legislative body.
The technical people in charge of the Federal and State programs must insure
that the programs are uniformly enforced and have understandable guidance.
Additionally, all three arms must have more of a partnership with the PRP
group to insure the process is understood and is followed through. With these
efforts, and this type of program in place, this Superfund process can be cut
down by years.
The example I gave previously that required eight years to get to the Record
of Decision phase is an example of how the process is not to work. On the
other hand, BN has another Superfund site, on a Federal level, with virtually
the same level of effort with greater understanding of the site and all in a
three year process. The difference is a better understanding of the
requirement of the program, an agency that is willing to work with the PRP
and an enforcement body that is willing to negotiate terms of the consent
decrees that are conducive to cleaning up the site. Anything short of this is
not beneficial to the environment or to our society as a whole.
M. L. Burda
Manager Environmental Projects
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Environmental Protection Agency
Public Meeting: Approaches For Speeding-Up
The Superfund Process
White Paper
JUNE 24,1992
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Promoting Voluntary CERCLA Response Actions
White Paper
Introduction
The United States Environmental Protection Agency (EPA) is charged
with implementing the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA, more commonly known as
Superfund). The EPA has the responsibility of ensuring that all CERCLA
sites are addressed expeditiously, in a manner that protects public health and
the environment. This paper reviews how EPA has attempted to fulfill that
responsibility and the activities spurred by CERCLA's liability standard. It
analyzes constraints to the current process and proposes alternatives that will
encourage private parties to respond to CERCLA sites in a manner consistent
with the public interest.
Background
CERCLA was adopted in 1980 in response to the problems arising from
historical hazardous waste disposal practices across the country. Originally,
Congress authorized CERCLA with the expectation that once sites were
cleaned up, the statute \vould be retired. One primary objective of CERCLA
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was to use its liability standard, which is strict, joint and several, to compel
the potentially responsible parties (PRPs) designated by the statute to
investigate and remediate sites posing a threat to public health and the
environment. Another objective of CERCLA's liability scheme was to provide
an incentive for private industry to improve ongoing waste management
practices.
Coupled with CERCLA's broad enforcement authority are a fund (the
"Superfund") and a priority system, the National Priorities List (NPL),
established to channel money to the sites posing the greatest threat and to sites
at which liable parties were either unwilling or unable to perform response
actions. Theoretically, the NPL establishes the list of high-priority or worst-
risk sites that should be addressed first.
The CERCLA process begins with the discovery of a site where there
has been an actual or threatened release of hazardous substances. The
National Oil and Hazardous Substances Pollution Contingency Plan, or NCP
(Title 40, Code of Federal Regulations, Part 300), serves as the road map for
investigating and remedying CERCLA sites. The EPA evaluates a site to
determine if emergency response is warranted or if it should be included on
the NPL. Tens of thousands of sites have been identified that must be
evaluated by EPA.
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As the CERCLA program grew, so did the NPL. It became the
universe of hazardous wastes sites of prune public concern. However, the
NPL listing process is long, arduous, and costly. It may take up to 4 years for
a site to be placed on the NPL. Instead of facilitating the response action
process, placement on the NPL can slow it down. EPA has thousands of sites
to evaluate and limited resources with which to do so. The system is forever
operating with a large backlog.
In addition to the sites discovered through the CERCLA NPL process,
activities undertaken by private parties, stimulated in part by the prospect of
CERCLA liability, are uncovering sites that require response actions. For
example, major corporations now routinely conduct environmental audits,
which can identify sites requiring action to address historical hazardous waste
disposal practices. Another source of sites is environmental due diligence
inquiries made as part of corporate acquisitions and divestitures. Due
diligence inquiries are routinely conducted to identify and quantify
environmental liabilities, and sufficient financial resources often are
contractually established to address these liabilities. Thousands of sites are
evaluated each year through this mechanism.
Once environmental liabilities are discovered, corporations often seek to
remedy them hi accord with the NCP without waiting for the government to
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determine whether the sites merit inclusion on the NPL. Corporations seek
to proceed because of the advantages presented: the delays inherent hi the
CERCLA NPL process are avoided; response is addressed in a controlled and
reasoned manner consistent with applicable regulations; the risk to public
health and the environment is reduced; and transaction costs (e.g., those for
dispute negotiation and administration) shrink significantly. Effective
environmental management becomes a routine business endeavor.
Such activities demonstrate the effectiveness of CERCLA's liability
standard. Private parties are investigating sites with minimal expenditure of
government resources. These actions are not undertaken haphazardly.
Consistency with CERCLA and the NCP is essential to reduce the potential for
further liability and to achieve successful cost recovery from other PRPs.
However, companies approaching EPA for assistance hi addressing such
sites consistent with CERCLA and under EPA oversight are not finding a
receptive audience. The likely EPA response is either that it is not interested
because the site is not on the NPL or that it is notifying the party as a
CERCLA PRP and initiating the NPL process. If the company takes action
before EPA is prepared to participate, it does so at the risk that its actions
may not be considered adequate at some point hi the future. Depending on
the risks posed by the site and the Agency's work load, that could take years
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or possibly could never occur. This approach is counterproductive to the
goals of the CERCLA program and fails to promote a cooperative relationship
between the Agency and the PRPs.
Sites being addressed through private party initiatives often involve the
same contaminants, environmental media, and levels of risk as those on the
NPL. Others may not merit inclusion on the NPL, but a timely response will
still ensure environmental risks are reduced consistent with the objectives of
CERCLA and the liabilities associated with the sites are minimized.
Reliance on the NPL process to address these sites virtually guarantees
that timely response will not occur. The number of sites that require
response far exceeds the number that EPA is capable of addressing via the
NPL program. The result is that the authorities provided by CERCLA are
not used to the extent possible to benefit and protect public health and the
environment.
The EPA has recognized the need to promote response actions other
than through the NPL process. In the proposed NCP of December 1988, the
EPA suggested deferring the listing process for sites where PRP-directed
response actions were occurring under other recognized state and federal
authorities or under CERCLA enforcement agreements (53 FR 51415). The
EPA has yet to make a final decision concerning this proposed policy, but it
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has continued to use this deferral process informally with some sites. For sites
addressed under Resource Conservation and Recovery Act (RCRA) authority,
deferral of the NPL process is officially authorized.
In the final NCP of March 1990, the EPA established provisions for
achieving substantial compliance with the NCP. These provisions identify the
requirements necessary for private parties to respond to sites and to recover
response costs. The EPA established these provisions "to encourage private
parties to perform voluntary cleanups of sites, to remove unnecessary
obstacles to their ability to recover their costs, and to encourage CERCLA
quality cleanups" (40 CFR, Subpart H). This provision is designed specifically
for sites responded to outside the NPL process.
In an effort to best use resources and foster regulatory objectives, some
EPA regional offices and some states employ various administrative techniques
to defer the NPL process. The regulators will place a low priority on sites
where PRP-directed response actions have been initiated, provided they are
being addressed consistent with NCP requirements. Often, these regions and
states obtain an enforceable commitment from private parties to address the
site. This exercise of administrative discretion allows response actions to be
conducted efficiently and expeditiously. It also allows regulators to focus their
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resources on sites that are not being addressed by private parties and helps
decrease the backlog of sites to be addressed under the NPL process.
Recently, EPA has launched major initiatives to streamline the CERCLA
program without compromising the public interest (February 10, 1992,
OSWER/Clay). These initiatives include commitments to streamline the
CERCLA decision process; to improve risk assessment procedures; to pilot test
tiered oversight of sites being addressed by private parties; and to use more
equitable enforcement procedures.
States such as New Jersey, Oregon, and Alabama are taking steps to
establish voluntary cleanup programs. For sites not on the state's priority list,
New Jersey has proposed formal procedures for oversight of PRPs, technical
requirements for site remediation, and cleanup standards. These procedures
would allow a private party to enter into a memorandum of agreement to
perform investigations and remediation under state oversight and to reimburse
the state for oversight costs. Unlike orders, no provision for stipulated
penalties or financial assurance is required. In return, the state agrees to
commit to specific time frames for reviewing and commenting on technical
submissions. New Jersey asserts that these procedures will "allow remediation
to occur in a shorter tune with increased consistency and effective protection
of human health and the environment" and "ensure that all sites are
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investigated properly and that the same level of cleanup occurs regardless of
the party conducting the work" (CITE 24 N.J.R. 1281).
The CERCLA program as administered by EPA has been criticized as
too complex, inefficient, and costly. Relatively few sites on the NPL have been
fully remedied. The EPA's critics are demanding that the CERCLA process
be more effective. Vigorous efforts to promote PRP-directed response actions
that are consistent with the public interest would answer this criticism. PRP-
directed actions are consistent with EPA's regulatory reform objectives
because they use more sensible and less costly ways of addressing CERCLA
sites and because more sites are addressed sooner, which provides greater
overall protection of public health and the environment.
The remainder of this paper focuses on mechanisms to promote PRP-
directed cleanups. The advantages to the affected parties and the constraints
on these actions are presented, followed by mechanisms that will promote
PRP-directed cleanups.
Advantages of PRP-Directed Cleanups
PRPs who direct their own cleanups can realize several advantages over
those who wait to follow the lead of the EPA.
The amounts of liability faced by the PRPs are reduced.
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« The transaction costs required to complete the cleanup are
reduced.
Actions are taken in manner to permit successful cost recovery.
Risks to public health and the environment are eliminated more
quickly.
Facilitating PRP-directed cleanups also provides advantages to the
government.
The use of public resources is minimized.
The transaction costs required to complete the cleanup are
reduced.
Risks to public health and the environment are significantly
reduced.
The pace at which the goals of CERCLA are achieved is
considerably accelerated.
Constraints on PRP-Directed Response Actions
While private parties may choose to address site investigations and
cleanups, several issues constrain their response. These constraints are
created by EPA's administrative process and cultural mindset. In the
CERCLA program, EPA does not generally differentiate between those
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JLO
companies who are acting responsibly and those who are recalcitrant. A
company is either forced into the NPL process or is ignored. EPA must find
ways to create positive incentives to motivate responsible companies as well as
negative incentives to motivate recalcitrant ones. Congress certainly did not
envision that response actions would be prevented due to a lack of resources
(or perhaps interest) on the part of EPA.
Costs for a PRP-directed response action may not be able to be
recovered if their actions are literally voluntary, e.g., done hi anticipation of
CERCLA liability rather than hi response to it. The PRP-directed response
action is indeed compelled if the conditions defined by CERCLA Section 104
exist; that is, there is a potential risk to public health and the environment
that warrants investigation consistent with the NCP. Therefore, for successful
cost recovery hi a PRP-directed cleanup, the private party will want to
proceed compelled by CERCLA, but hi advance of the NPL process.
To achieve that end, private parties often attempt to conduct voluntary
response actions under a CERCLA enforcement order with appropriate
government oversight. An enforcement order also will help to ensure that the
government will not require duplicative response efforts and will not second-
guess the PRPs.
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_LL
Nonetheless, private parties are often constrained from obtaining
CERCLA orders because the EPA is set up to address sites through the NPL
process. Because the Agency does not receive credit from Congress for PRP-
directed cleanups at non-NPL sites, it dedicates few resources to promote and
oversee them. In the EPA regional offices, such cleanups may be viewed as
detracting from the ability to achieve administrative program goals, which
revolve around NPL sites. Failure to achieve these goals can lead to a
reduction hi a region's resources. Consequently, the regions resist allotting
resources to oversee such voluntary cleanups, even where the sites pose
significant environmental risks. The regions are also concerned that the
voluntary actions may not be followed through to completion.
If a private party initiates a cleanup, the region may choose to initiate
the NPL process to ensure the region receives credit or resources. But, by
doing so, the incentives prompting the PRP-directed response disappear.
It is even more illogical that the EPA will often proceed with the NPL
process even if the site is being addressed under a state order. Given that the
NPL system is already clogged with sites requiring attention, why would EPA
choose*to expend limited public resources on a site already being addressed?
Additional constraints exist on PRP-directed cleanups. The NPL process
requires extensive government oversight at all sites, purportedly to ensure that
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12
the response actions performed are consistent with the NCP, yet the EPA will
never have enough resources to expeditiously oversee all sites requiring
response actions. Thus, EPA must be forced to accept that only a limited
number of sites can be addressed.
EPA oversight of response actions undoubtedly helps to ensure that
recalcitrant parties perform response actions appropriately. However, where
PRPs have taken the lead at a site, where the financial resources and
commitment of the PRPs is sufficient, and where the technical issues are
relatively straightforward, less oversight is warranted. Most CERCLA sites
involve contaminants (e.g., metals, volatile organic compounds) and media
that can be effectively remedied based on the application of good science and
existing technology. The NCP provides an effective road map to address the
sites. To suggest otherwise may be good for technical consulting firms but it
is clearly not in the public interest.
Based on many companies' experiences, private parties rightly fear that
EPA oversight costs will be unduly high. A typical CERCLA enforcement
order places no limit on government oversight costs, the majority of which are
attributable to EPA's contractors. While EPA has taken steps to address this
concern by establishing oversight guidance, this guidance is not uniformly
followed by EPA regions. Responsible private parties are willing to reimburse
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EPA for reasonable oversight costs. Absent controls, however, consultants
who perform oversight on behalf of EPA can effectively create "annuities" for
themselves. Again, the consultants benefit from this process, the public less
so.
The EPA must understand that many private parties are not
recalcitrant. They understand their responsibility to address sites that pose
a risk to public health and the environment. The threat of CERCLA liability,
the need for consistency with the NCP, and the desire to spend resources
wisely are the real catalysts that ensure that response actions are performed
properly. Failing to encourage responsible companies who look to respond
efficiently does not advance CERCLA's goals.
The remedy selection process also impedes PRP-directed response
actions. Under CERCLA, EPA selects the remedy based on the risk
assessments that EPA now conducts at all CERCLA sites. EPA is concerned
that private parties will seek remedies that are not sufficiently protective,
while private parties are concerned that the EPA's remedies will not be cost-
effective (because they are designed for virtually impossible "worst-case"
conditions) or consistent with previously accepted approaches.
The differences in the approach to remedy selection would largely be
resolved if the problems were consistently defined by conducting the risk
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_L4
assessment in a standard manner using technically defensible criteria. The
criteria should be selected to promote the uniform and effective reduction of
risk.
Both EPA and private parties have been criticized for conducting
subjective assessments that are not based on good science. EPA regions may
use different risk assessment criteria for sites that pose similar risks. This
inconsistency can increase remedial costs without increasing the benefit to
public health and the environment. To address this concern, EPA has
published and is updating national risk assessment guidelines. However, these
guidelines are not uniformly followed by the EPA regions. Once the level of
risk is established, the decision of what constitutes an acceptable risk for a
given site must be established. Once again, considerable inconsistency enters
the process.
The CERCLA remedial process is unduly repetitive and burdensome.
The EPA continues to require exhaustive studies at each NPL site without
regard to precedent. Expensive and tune-consuming studies are performed
that mainly benefit the EPA's consultants. The NCP states that the purpose
of an investigation is to gather sufficient data so that remedial alternatives can
be adequately analyzed. If these data have been gathered at other sites, why
is the process repeated? The best way to clean up a site often is by initiating
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JL5
the remedial process as early as is feasible, monitoring its effectiveness, and
making needed adjustments. Endlessly studying a site precludes achieving
that end.
The CERCLA program has developed into a rigid, unyielding monolith.
Its mechanisms have outgrown their usefulness. In an effort to seek the
perfect remedy at a few sites, we are accepting mediocrity at many more.
EPA has announced initiatives to streamline the CERCLA program. The
question is whether EPA can implement dynamic change that translates its
pronouncements into results.
Recommendations
The primary constraints to promoting voluntary CERCLA cleanups are
not insurmountable. No legislative or major regulatory change is required.
Substantive administrative and cultural changes can be initiated that will
effectively promote voluntary CERCLA cleanups.
EPA regions should be given resources for overseeing PRP-directed
response actions. Administrative incentives should be created to
promote PRP-directed response actions and to provide regions with
resources to negotiate and implement PRP-directed enforcement orders.
-------
Recognizing that EPA will always have limited resources, it could
conduct compliance audits randomly, much like the Internal Revenue
Service conducts tax audits. This approach may be particularly
appropriate for sites involving commonly addressed environmental risks.
EPA could rely on the necessity for PRPs to demonstrate compliance
with CERCLA at any tune, regardless of the level of EPA oversight.
Noncompliance could result in repercussions such as enforcement
penalties or an expedited NPL listing. CERCLA's liability standard
served as the stimulus to initiation of the PRP-directed action and it
would also serve as the stimulus for compliance, ensuring that response
actions are conducted appropriately using the NCP as the map.
To better use its resources, EPA should allow private parties to perform
the preliminary assessment of sites to determine whether further action
is warranted. EPA could then make decisions regarding how to treat
sites based on actual data. High-risk sites could receive greater
attention, including NPL listing. Medium-risk sites may require an
order and EPA oversight. Low-risk sites could be addressed with less
EPA involvement, without the need for formal orders and oversight.
EPA should provide private parties with suitable assurances that it will
not initiate or proceed with the NPL process at sites proceeding under
-------
_LZ
a PRP-directed enforcement order that imposes CERCLA-equivalent
requirements. This can be achieved by formally deferring the NPL
listing or by specifying that NPL listing of such sites will be subject to
a no-action remedy and immediate delisting. EPA should formalize
what many regions are successfully using informally and recognize that
deferred listing can be an effective incentive. Even with this approach,
the NPL process will remain backlogged.
To ensure consistency with the NCP, the PRP-directed cleanup order
could specify that the NPL listing process will be initiated and possibly
expedited if the private party is not proceeding in good faith. If the
NPL process must be initiated, the EPA could require the private party
to fund its cost.
EPA could require PRPs to commit to performing all warranted
response actions as part of the initial enforcement agreement in
situations where PRP viability is a concern.
EPA should clarify that a PRP-directed response action is actually a
compelled CERCLA response as defined by Section 104. Such action
could begin as early as the preliminary assessment stage as long as all
response action is performed consistent with the NCP.
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_L8
EPA should require regions to follow national guidelines for establishing
and controlling oversight costs.
EPA should approve the advance funding of oversight costs so that it
can plan for and acquire sufficient internal and external oversight
resources.
Regardless of who performs the risk assessment, standard criteria
should be followed. These criteria should use risk exposure scenarios
based on actual risks to public health and the environment to the
maximum extent possible. The risk assessment parameters could be
established hi the order.
EPA should establish guidelines for determining what levels of risk are
acceptable for given types of sites.
To support the PRPs' ability to achieve cost recovery, EPA should notify
recalcitrant PRPs of their potential CERCLA liability.
EPA should track sites that are being responded to consistent with the
NCP but outside the NPL process. Cleanup is cleanup. EPA should
take credit for NCP-equivalent response actions whether overseen by
EPA, a state, or not at all.
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JL9
EPA should consider using alternative remedial contracting strategy
contractors to provide resources to oversee PRP-directed response
actions.
EPA should aggressively pursue the development of presumptive
remedies for classes of sites with similar characteristics. Resources
should be targeted toward realistic risk reduction and not exhaustive,
repetitive, unproductive investigations. Data should be gathered only
as warranted to achieve NCP objectives. The emphasis should be on
initiating the remedy early and refining the remedy based on continued
monitoring and observation.
Rather than reinvent the wheel, EPA should build on its experience and
that of states such as New Jersey to develop mechanisms that promote
PRP-directed cleanups.
EPA should encourage the states to promote voluntary cleanups.
EPA should recognize that applying the NPL process to all sites is futile
and counterproductive. Specific incentives to promote PRP-directed
response actions consistent with the NCP should be developed,
implemented, monitored, and modified accordingly. The incentives
should be dynamic and achieve measurable results immediately. Years
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20
of pilot testing at a few sites will hardly expedite the achievement of
CERCLA's goals.
Conclusions
The need for substantive administrative and cultural reform of the
CERCLA program is evident. Everyone involved hi the CERCLA process has
a responsibility to serve the public interest in a manner that achieves
environmental and economic goals. Given the number of sites that require
attention, the most pressing issue is to ensure that the best possible use is
being made of existing resources. Failure to do so will lead to the justifiable
erosion of public, political, and financial support of the CERCLA program.
Implementing the steps outlined above will significantly enhance PRP-directed
response actions and make the process work more effectively. The result will
be enhanced protection of human health and the environment more
economically and more rapidly.
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FSDWAC for EHVIRONMEKTAL CONCERHS. INC.
819 W. Third St.. S. - Fulton. HY 13069 - (315) 592-9731
June 30, 1992
Timothy Fields, Jr., Director
Superfund Revitalization Office
U.S. Environmental Protection Agency
Washington, D.C. 20460
Re: Follow-up Coaaents-Heetinq June 23-24. 1992
Dear Tim
Please convey ray thanks to the Agency for providing ne with the
opportunity to attend the Citizens' - meeting with Rich Guinond and
EPA's Superfund Public Meeting to discuss approaches for speeding-
up the Superfund process. I felt that the June 23rd meeting was of
extreme inportance for it not only afforded me, as a neraber of the
general public, the opportunity to convey oy concerns and
recommendations to the Agency but understand the Agency's position
and the challenges they face relative to the Superfund
program/process.
Based on the renarks that were made at both meetings, I am
submitting these additional comments»
- PUBLIC
. Although it is true that the public organizes around
a site because they feel their health may have been compromised,
they also organize because the site poses econoaic risks. In
today's society, the public is concerned about surrounding land
values, the future use of the contaminated property, and the
overall economic in?act the site will have on their community.
. Routinely, the public first learns of a Superfund site
via sensational newspaper headlines; the site poses a significant
threat to the environaent and public health! Unquestionably, this
dictates the way the public will response. Along with their initial
fears about health effects, anger towards local/county/state and/or
federal governnent is aroused because they feel that they have been
"deceived" or "betrayed* by these entities.
-------
Public notification, relative to the existence of a community
Superfund site, should be made at the earliest opportunity and
promptly followed by a public meeting at which time PRPs are
invited to attend. The public should be encouraged to be expressive
and the meeting should not be one of a technically-orchestrated
format so that the public becomes acre confused and frustrated with
a process they haven't had the opportunity to understand.
Interacting with the public in an open fashion and in a timely
manner will also help to prevent the social problems that seem to
occur when community members* are pitted against local/county
officials in discussing remedial 'issues and when the public is
required to "prove" their case against a local PRP. Because the
media tends to print official word as the truth, regardless of its
validity, they 'often help to project a political accounting of a
situation rather than an accurate environmental condition.
At the earliest stages in the process (PA/SI), the public should
b« provided an opportunity to be involved in a process that
everyone knows, affects them and/or their lifestyle. If nothing
else, by contributing information they sense will assist the EPA
in developing a realistic site-scenario, the public will feel that
they have contributed something beneficial to the process.
Conveying "startling" information should never be left in the h&nds
of local officials for they are extremely inexperienced and/or
biased in these matters and only serve to confuse th« issue.
- LOCAL GOVERNMENT
The elected officials of most small communities are
generally limited in their understanding of the environmental
issues that are of considerable, long-tern, importance to the
economic well-being of a community. Although a local official may
be proficient in city codes and local attorney in the writing of
wills and the handling of insurance claims, they have little
experience based on environmental criterion. Therefore, they
develop their positions based on information they receive from
community leaders, who usually have a vested interest in the
corapany(s) which has been identified as a PRP. Political decisions,
rather than environmental decisions, take precedence over how, to
what degree, and in what timeframe the matter should be handled.
Local governaeifts aust be brought up-to-speed on environmental
issues. In addition, the indorsation they receive must enlighten
then to the importance of taking pro-active steps to improve
community environnental conditions (e.g.i remediating hazardous
waste sites) and protecting area natural resources. Local and
county officials should also be mad» aware of the need for and
significance behind the involvement of its citizenry. And, they
too, need protection against PRP retaliation.
Constituent knowledge of environmental issues which surpasses that
of local government, creates divisions between those entities. An
educated public should include local government officials.
-------
- PRPs
This affected party places considerable emphasis on
the use of a technology to contain a problem rather than eliminate
it. For example, in ground water (aquifer) contamination issues.
it is becoming increasingly apparent that by providing an
alternative source of drinking water to an effected population, the
"treatment" becomes the solution. As long a treatment is provided,
some PRPs and some states feel that the problem of ground water
contamination has been addressed.
It is ray fear that once hook-up occurs, the use of ground water as
a drinking water source will be replaced by the use of surface
waters. This will place the quality of the country's ground waters
at risk. Once PRPs and states eliminate ground water as a concern.
the stringent rules and regulations that apply to its protection
as a drinking water source will be relaxed, further undermining its
value.
This type of approach to ground water contamination problems also
places an affected community in a vulnerable position relative to
dependency. The control they once held over their natural resources
is lost as they become dependent on the use, and cost per use, of
an "outside" water system.
Fearful of the TAG's potential to technically educate
a lay audience, PRPs attack the TAG program as well as the public's
involvement by insinuating that the public insults the integrity
of the EPA when they seek consultants. This is an argument I have
heard not only froa the PRPs but staff froa within the NYS
Department of Environmental Conservation and Health. TAGs enhance
citizen knowledge and subsequent positions relative to technical
issues which makes both entities uncomfortable.
In addition, on numerous occasions I have heard PRPs (consultants)
state that it is difficult for then to "identify" the appropriate
group of citizens to work with. As I explained to one consultant
following her remarks at the June 24th meeting, up until this year
if Fulton's Chamber of Commerce had been contacted to identify
whether or not there were any active individuals or a citizens'
group in the City of Fulton that dealt with environmental issues,
the answer would have been no, even though FSDWAC has been
publically active in the city since 1985, has received two TAGS,
and it is publically known that I serve as a member of the State
Superfund Management Board. FSDWAC and I have been politically
unpopular for the past four years.
If PRPs need to know if there is an active citizen and/or citizen
group in the area, they should first check with EPA to identify
whether any TAGs have been issued in the area. PRPs can contact Hew
York State for this information as well (Citizen Participation-
Division of Hazardous Waste Remediation) for it is ny understanding
that the NYS Department of Environmental Conservation keeps a close
watch over citizens' groups, their leaders and activities.
-------
- ATSDR
This agency should evaluate site conditions as soon as
possible so that: health risk assessments can be based on "existing"
conditions rather than altered ones. County and state health
departments have been lax in developing any baseline health data.
When it is developed, as was the cac« with the NPL Clothier
Disposal Site, the county health department sat on the information
for approximately one year because they didn't know what to do with
it. County health departments should be educated as to what is
required of them and how to properly convey the information to the
appropriate agency. I must add, although it is not a responsibility
of the federal government, a County Health Commissioner should not
be a political appointee, as political "thinking" is the motivating
force behind the decisions that are made relative to public health
and th« environment.
In closing, thank you again for the opportunity and all the
courtesies extended to me. I found both meetings very rewarding and
would like to continue to interact with the Agency relative to the
pubic's involvement in Superfund issues.
Sincerely]
. Weston
President
F3DHAC for Environmental Concerns. Inc.
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cm ciss/icicitioii ofen^nic-cTr/!^ and scie
firms practicing in hdziin/mis ii'dsfc n
MEMORANDUM
August 25, 1992
TO: Stan Hitt, Acting Group Leader, Super-fund Revitalization Office
FROM: Hazardous Waste Action Coalition
SUBJECT: HWAC Comments on June 24, 1992
Superfund Revitalization Public Meeting
The Hazardous Waste Action Coalition (HWAC) would like to extend our thanks and sincere
appreciation to the U.S. Environmental Protection Agency for holding the Superfund
Revitalization Public Meeting on June 24, 1992 at which representatives of HWAC were
present. HWAC found the meeting beneficial from the standpoint of identifying the myriad
of issues of concern to parties directly impacted by the Superfund process. The interaction
between EPA and the meeting participants during the break-out sessions also served to
initiate dialogue on the issues.
HWAC currently represents more than 110 firmsincluding 70% of the top 30 design firms
in hazardous wastewho employ approximately 75,000 people in over 600 branch offices
throughout the United States. HWAC member firms are engaged in the investigation and
cleanup of hazardous waste sites for the private sector, EPA and other federal agencies, and
provide about 85 percent of the nation's hazardous waste consulting services.
HWAC applauds the Agency for announcing the Superfund Accelerated Cleanup Model
(SACM), which effectively combines the removal and remedial programs with a goal of
speeding site cleanups. We share the Agency's goal, and welcome the continued opportunity
to work with EPA to help protect human health and the environment. As stated during one
of the breakout sessions, however, HWAC is concerned that EPA's ability to speed site
cleanups and promote the use of innovative technologies during Superfund cleanup activities
may be hindered by EPA restrictions on Superfund Section 119 contractor indemnification
guidance. Any effort to speed site cleanup may impose greater risks on the cleanup firms,
thereby necessitating greater indemnification protections to ensure that program goals are
met.
HWAC prides itself on being at the forefront of emerging issues affecting the hazardous
waste practice, and as such, published "The Hazardous Waste Practice - Technical & Legal
Environment" in June, 1991. This document is the only document of its kind to explain the
technical uncertainties involved in the hazardous waste practice, the impact of liability
concerns on hazardous waste cleanup activities, the current laws and regulations, the roles
and responsibilities of all involved parties, and the interrelationship between them which
cannot be overlooked. Furthermore, this document expresses HWAC's viewpoint on the state
A Coalition of the
American Consulting Engineers Council
-------
of hazardous waste cleanup regulatory and legislative initiatives. HWAC's conclusions on
these issues are identified below.
Hazardous
waste
consultants
are forced to
base their
cleanups on
unproven
methods
rather than
on the sort of
firm
conclusions
typical of
other areas of
engineering
and science.
The engineering and scientific community is not yet able to provide
reliable solutions to many of the nation's hazardous waste problems.
The general public, however, requires that hazardous waste problems
be addressed now, in spite of our lack of definitive answers. As a
result, hazardous waste cleanups today involve the use of uncertain
technologies in attempting to assure human health and
environmental protection. This has led to complex and sometimes
contradictory federal and state regulations, and hazardous waste
management professionals have become subject to conflicting
professional, legal, and financial requirements.
The problems caused by hazardous wastes have been a subject of
increasing interest and activity in this country for over a decade.
New laws have required greater care in handling and disposing of
hazardous wastes and also require cleanup of sites where improper
handling or disposal has resulted in threats to human health or to
the environment. Voluminous regulations have been promulgated
implementing the new laws, and even more voluminous guidance
documents have been published to explain the regulations.
In response to the complexity of this field, a new profession has
evolved--the hazardous waste practice-in which engineers and
scientists investigate and clean up contaminated hazardous waste
sites. These engineers and scientists work for private consulting
firms that are referred to here as hazardous waste consultants.
Hazardous waste consultants have a critical role in our nation's
efforts to repair damage from past inadequate management of
hazardous wastes. The hazardous waste consultants involved in this
effort are working toward bringing to this new field the same levels
of expertise, quality, and professionalism that exist in other
engineering and scientific fields.
Hazardous waste cleanups, however, can involve sites with unknown
quantities and mixtures of many different hazardous wastes. We do
not yet know how to approach cleaning up many such sites.
Hazardous waste consultants are forced to base their cleanups on
unproven methods rather than on the sort of solid analysis and firm
conclusions that are typical of other areas of engineering and science.
This situation will continue until a solid experience base for this field
develops.
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Few court
decisions
have defined
the legal
liabilities of
hazardous
waste
consultants,
making it
impossible for
a hazardous
waste
consultant to
determine the
real risk of
involvement
in the
hazardous
waste
practice.
These technological uncertainties create enormous business risks for
the hazardous waste consultants who participate in cleanups. The
health and environmental dangers posed by hazardous wastes,
coupled with the uncertain nature of current technologies and legal
liabilities, create many opportunities for large legal liability
exposures and for lawsuits if a site investigation or cleanup does not
meet the expectations of regulatory agencies, private clients, or the
general public. In many cases these expectations cannot be met by
available investigative methods and cleanup technologies.
At this writing, few court decisions have defined the legal liabilities
of hazardous waste consultants, making it impossible for a hazardous
waste consultant to determine the real risk of involvement in the
hazardous waste practice. Also, the norms and procedures for
conducting the hazardous waste practice, against which hazardous
waste consultants will be judged in future lawsuits, are not yet
established. Several issues stand out:
At what point in the process of investigating a hazardous
waste site (to establish the nature and extent of the
contamination problems) should the investigation be
determined sufficiently complete to allow the remedy selection
and design processes to proceed?
In cleaning up a site, how clean is clean enough, and will that
be recognized as clean enough in the years to come?
Given the limited reliability of the waste site cleanup
technologies that are currently available, what reliance can a
hazardous waste consultant place on a given remediation
design? What liability should others assume for the cleanup?
How can the complex issues of liability for hazardous waste
cleanups be resolved to allocate responsibility equitably?
A key to understanding these issues lies in the legal definition of
negligence, which in this context means the failure to carry out
hazardous waste engineering and science services in a manner
consistent with the normal and accepted "standards of practice." The
primary problem in this field, and one of the reasons for this
document, is that the "normal and accepted practices" are not well
defined in the hazardous waste cleanup industry, making future
determinations of negligence difficult to judge.
Today the standards of practice, such as exist, have been derived
largely from c collection of "guidance documents" produced by the
Environmental Protection Agency (EPA) over the past decade.
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This legal
and
regulatory
environment
needs to be
clarified to
enable all
parties,
including
hazardous
waste
consultants,
to concentrate
on developing
the best
solutions
possible
without
excessive
uncertainties
about their
legal
liabilities.
Unfortunately, these documents are not centrally organized and
there is no formal or predictable mechanism for revising or
eliminating guidance documents that have become outdated. Both
the federal and state hazardous waste programs are still changing as
new regulations and interpretations are written. Hence, the
standards of practice are changing, too, but without a stable
framework for developing, coordinating, or revising the critical
regulatory guidance.
At the same time, uncertainty about the ability of standard cleanup
technologies to clean up wastes at many specific hazardous waste
sites makes it unrealistic to use EPA guidance documents as
iron-clad recipes for all cleanup projects. As a result guidance
documents cannot be followed rigidly, but rather must be used with
professional judgment at each project. In spite of this, regulatory
agencies often cite the provisions and requirements of guidance
documents as if they were legally binding. Deviations from the
guidance documents usually have to be supported by technical
justifications, which can be lengthy and extremely costly.
This legal and regulatory environment needs to be clarified to enable
all parties, including hazardous waste consultants, to concentrate on
developing the best solutions possible without excessive uncertainties
about their legal liabilities.
In spite of these difficulties, there is a strong national commitment
and stringent legal requirements to continue investigating and
cleaning up our hazardous waste sites. Hazardous waste consultants
will continue to contribute their expertise in applying the available
science and technology to meet the challenges of this complex,
developing field.
Recommendations
Since 1988, when HWAC prepared its first review of the hazardous
waste practice, the practice has improved in several important areas.
For example, guidance documents are generally more available, more
forums are available for the communication of technical ideas, and
there is a better understanding of the significant challenges facing
participants in the field.
At the same time, the hazardous waste practice is still quite young,
and significant obstacles continue to hamper our nation's efforts to
address our hazardous waste problems. HWAC and its members will
continue to lead in efforts to improve the state of practice. HWAC
makes seven recommendations that would accelerate our progress.
1. Current laws and regulations must be changed to ensure that
procedures and treatment standards applicable to current
-------
generated waste of predictable composition are not applied as
cleanup goals to remediation of hazardous waste sites.
2. EPA should develop a system to organize, disseminate, and
update its guidance documents and to eliminate redundant
and conflicting guidance.
3. EPA should treat guidance documents as guidance rather
than as standards of practice to allow flexibility in dealing
with site-specific conditions.
4. Clients-private, state, and federal-should recognize that
hazardous waste consultants can address technical issues but
do not set policy or cleanup goals. Regulatory agencies should
accept this role as makers of public policy. Hazardous waste
consultants should not be asked to fill the policy role assigned
by law to public regulatory agencies.
5. Clients should provide adequate indemnity or other liability
cost reimbursement mechanisms that can improve the current
shortage of liability insurance and surety bonds. Further,
contracts should contain meaningful risk-sharing provisions to
equitably allocate responsibilities among the parties--
recognizing that the ultimate responsibility and liability
should rest with the party responsible for the original
existence of waste at the site.
6. EPA should encourage the demonstration and application of
innovative technologies by (1) providing financial support to
technology developers for testing technologies and
documenting the results, (2) restricting liability associated
with technology development and use, and (3) limiting cleanup
costs for property owners and other responsible parties who
agree to implement promising innovative technologies. This
could be fashioned after Clean Water Act's innovative-
technology grants program.
7. Preemptive federal legislation should establish negligence as
the standard by which both federal and state courts judge the
liability of hazardous waste consultants.
8. EPA should recognize that the science of risk assessment is
imprecise and that standard guidance documents reflect an
excessively conservative approach. This conservatism leads to
risk-based cleanup goals that are inappropriate and that often
cannot be achieved with either proven or innovative tech-
nologies. The success of a cleanup should be judged by its
relative reduction in site risk and cost effectiveness-not by
whether calculated risk-based residual concentrations have
been reached.
-------
HWAC again requests that you reexamine the impact of restrictive SARA 119
indemnification guidance on the Agency's ability to speed the cleanup process. We
applaud the Agency for playing a leadership role in Superfund Reauthorization, and we
thank you for the opportunity to attend the Public meeting. HWAC is also performing
further study of Superfund reauthorization issues, and expects to issue a report on our
study by the end of the year. Feel free to contact Terre Belt, HWAC's Executive Director,
at (202) 347-7474 if you would like to discuss these comments, or HWAC's Technical and
Legal Environment Report.
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Monsanto
ENVIRONMENT. SAFETY A HEALTH
Monsanto Company
800 N. Undbenjh Boutevard
8L UXM, Uteoul 63167
Phone: 014) 634-1000
June 25, 1992
Dr. Richard J. Guimond
National Superfund Director
U. S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
. i
-~-J<- l~
Dear Dr. .Gtfimond:
I want to thank you and your team for giving us the opportunity to participate
in the June 24 meeting of the Superfund Eevitalization Team. The session not
only gave us the opportunity to present our ideas, but also served to reconfirm
our conviction that the Agency is launched on a very real and dedicated effort
to make the process work. There is a lot to do.
At the meeting, I expressed our views on a number of issues, and our thoughts on
some initiatives that the Agency should consider to eliminate obstacles to
progress and to reduce remediation costs. I want to take the opportunity of this
letter to pass on some of these concepts in a written format for more reflective
consideration by your ataff . Four (4) papers are attached:
Project Concept for Improving Superfund
« Voluntary and Accelerated Remediation Under CERCLA
Risk Assessment Methodology for Remedial Action
« Risk Management as a Two-Stage Process
Respectfully yours,
D. B. Redington
Director, Regulatory Management
cc: M. A. Pierle
M. R. Foresman
B. J. Gilhousen
J. D. Wilson
M. F. Crusto sf.lt6
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PROJECT CONCEPT FOR IMPROVING SUPERFUND
Submitted By: Monsanto Company
June 24,1992
SITUATION
Current progress under Superfund is significantly hampered by the process
in use to allocate liabilities, establish RODs, manage remedial action and
determine roles for fhe various players. The law and regulations are
sufficiently flexible to allow a different approach, in pursuit of a higher level
of success. The inefficiencies in the process equate to at leaste 30% waste.
If alternative approaches are found, the savings to the country could be
substantial, exceeding $308.
Much of the inefficiency is caused by a lack of trust among the various
players, including the general public. The distrust stems from the "arms
length" process intrinsic to the present approach and from one or more of
the players' belief that they are (or will be) disenfranchised somewhere in
the current process. The result is duplication of work, endless delays in
approvals, legal maneuvering and costly placement of blame (cost).
Other inefficiencies intrude because sound project management routines are
not always used and because the Agency does not use the full flexibility
provided under the law to facilitate progress and reduce controversy. The
perceived threat of the present liability standard leads many PRPs to
approach the process in an adversarial manner. The result of these factors
leads to higher cost and slower progress on site cleanup than is otherwise
possible.
PROPOSAL
Within current laws and regulations, develop and test an alternate
approach to the site remediation process. The approach would utilize site-
oriented teams to develop trust and cooperation, with freedom of the group
to eliminate points of conflict and maximize points of agreement. The
result should be reduced costs, a faster pace and more effective cleanups.
situaln3Jt5
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"ARMS LENGTH" PROCESS, TOGETHER WITH PERIODIC
CONFRONTATION ON RI/FS, ROD, ETC LEADS TO LITIGATION
AND DELAY
THE THREAT OF "JOINT AND SEVERAL" LEADS MANY PRPS
TO WITHDRAW FROM COOPERATIVE SOLUTIONS
DELAY IS IMPOSED BY THE ADVERSARIAL ENVIRONMENT
AND BY RIGID ADHERENCE TO NCP ROUTINES
PROJECT MANAGEMENT DISCD7LINES ARE NOT FOLLOWED,
FURTHER DELAYING PROJECT COMPLETION
DELAY, TRANSACTION COSTS AND INFLEXIBLE ADHERENCE
TO NCP ROUTINES ADD SIGNIFICANTLY TO CLEANUP COSTS
issues2.1t5
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CENTERPIECE; PROJECT TEAM CONCEPT
SITE-BASED TEAM, WITH AUTHORITY TO
ELIMINATE POINTS OF CONFLICT
PUBLIC, EPA, PRPs FULL PARTICIPANTS FOR
DELIBERATIONS, RI/FS, ROD & RD/RA
DECISIONS
PRP AGREEMENT UP FRONT TO COVER STUDY
AND REMEDY, IN VIEW OF POINTS OF
CONFLICT ELIMINATED
PRP PARTICIPATION IN RISK ASSESSMENT AND
REMEDY SELECTION
center2.!t5
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PILOT PROJECT
FOR
IMPROVING SUPERFUND
OVERALL CONCEPT
EVOLUTION, NOT REVOLUTION
WITHIN CONSTRUCT OF PRESENT NCP
LEARN FROM SUPERFUND EXPERIENCE
BUT
FOCUS ON DEMONSTRATING MODEL FOR HJIURE
CLEANUPS
PRIMARY INTENTIONS
PROVIDE MECHANISMS FOR COOPERATION
ELIMINATE PRESENT POINTS OF CONFLICT
EPA - PRPs ~ PUBLIC
'
JUSTICE
MINIMIZE TRANSACTIONAL COSTS
REDUCE STUDY, REMEDIAL ACTION COSTS
SPEED CLEANUPS
(PAY SOONER; BUT OFTEN LESS)
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ELIMINATE POINTS OF CONFLICT/
MAXIMIZE POINTS OF AGREEMENT
The following elements of flexibility or committed Agency action are judged
by Monsanto to be useful in any model protocol intended to reduce the
level of delay, unnecessary cost and litigation associated with Superfund
remediation.
Earlv Access/Use of Allocation Information
Full and early access to PRP lists, waste volumes and rankings in the
spirit of CERCLA §122(e)(l).
EPA commitment to cause settlement with De Minimis PRPs, with
appropriate multipliers and reopeners to reflect risk.
EPA commitment to perform timely Nonbinding PRP Allocation
under §122(e)(3)(A).
Aggressive EPA pursuit of recalcitrants instead of reliance on
joint/several authority.
Streamline the RI/FS Process
Focus RI data-gathering to that truly needed to assess contamination
risk.
Full flexibility to use staged remedies, iterative design. E.g., perform
obvious removal work during the RI/FS, begin pump-and-treat before
the FS or ROD.
PRP participation in the Risk Assessment process.
EPA agreement to limit circumstances when ARARs may be altered
from those set in the ROD.
Obtain clear agreement up front on the reasonable future uses of the
site.
Limit the number of study cases in the FS.
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ROD Process
EPA agreement to define performance-based remedy in the ROD, not
technology(ies).
EPA understanding that present technologies can be limited, e.g.
pump and treat may not achieve MCLs, incineration may not work
with dirt.
Participate with EPA as a team in ROD deliberations.
Implementation Issues
EPA commitment to hold experienced project managers.
Full involvement by EPA Section Chiefs to ease RPM transitions,
facilitate appeals.
EPA commitment to limit number and activities of oversight
contractors.
EPA commitment to execute timely reviews and decisions to expedite
project. Approvals by default if untimely.
EPA commitment to provide full support to obtain Land Ban
Variance.
Relief on RCRA standards as ARARs.
Other
EPA commitment to use mixed funding or other recourses to cover
orphan/recalcitrant shares, per §122(b)(l).
EPA discipline on documentation of Agency and contractor costs to
be recovered from PRPs, with acceptance of audit protocols.
EPA will not demand strict adherence to model orders/decrees, but
will tailor instruments to site requirements.
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PRPs Should Be Willing To Consider Added Points of Agreement:
PRPs agree up front to execute remedy, covering RI/FS and
Remedial Action, in return for opportunity to play active role in
remedy selection.
PRP agreement to take the lead at a site, even though not the largest
PRP.
PRPs to fund program for incentives to obtain and hold experienced
EPA personnel as RPMs.
PRPs to set up Response Cost Fund which EPA could use to cover
expenses without accounting delays.
PRPs fund technical evaluations (e.g., pilot tests) of innovative
alternative remedies.
PRPs fund/arrange community involvement in studies, remedy
selection and RD/RA.
poiiits2it5
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VOLUNTARY AND ACCELERATED
REMEDIATION UNDER CERCLA
Submitted By: Monsanto Company
June 24, 1992
PROLOGUE
The Agency has adopted an enforcement-based, command and control approach to
the implementation of the national mandate to clean up abandoned waste sites.
The result is a strict regimen of actions that is imposed at all sites, a
regimen that has little room for firms that want to move early and quickly to
undertake responsible action.
The "arms length" attitudes and posturing associated with the "enforcement-
first" approach is not working. PRPs and the Agency respond to tha thraat of
legal action with further legal action. Responsible early work on cleanup is
thwarted by regulatory impediments and by the threat of contravening future
Agency actions. Significant progress in removing sites from the NPL is not
occurring.
An alternative approach is needed, wherein mutual trust replaces the enforce-
ment model, at least for preferred PRPs and preferred sites. Ultimately, the
Agency always has the full recourse of CERCLA in any situation where the trust
might be misplaced.
SITUATION
Voluntary or accelerated remedial action of listed or potential Superfund
sites is a concept that relates mostly to sites that have one or very few
PRPs, or when one or a few bear a commanding level of responsibility. In
these situations, PRPs often desire to advance on cleanup, either to prevent
further expansion of the release or to address potential threats to human
health or the environment. In situations where CERCLA responsibility is
diffused among a large group of parties, there may be little catalyst for
starting PRP action without the formal National Contingency Plan (NCP)
process.
Voluntary remedial action, i.e. thosa proceeding in advance of any NPL
listing, or accelerated remediation of NPL sites in advance of Agency letters
or orders, is discouraged by the unbending, formalized NCP process that is in
place. There is no mechanism to precipitate Agency decisions in support of
early action. The imposition of the full scope of RCRA as "applicable or
appropriate and relevant" (ARAB) standards further works to impede any desired.
action.
At the same time, EPA is increasingly aware that the NPL La a flawed report
card. The NCP mechanism works only slowly to remove sites from the list and
yet the list is used by many as a primary yardstick of CERCLA progress. This
suggests support for any responsible mechanism that would support cleanups
without NPL listing, or PRP actions that lead to delisting in a timely fashion
without demanding significant Agency oversight and resources.
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IMPEDIMENTS TO VOLUNTARY OR EARLY ACTION
t Early voluntary or accelerated remediation is subject to Agency
decisions not vet made and not likely to be made except in the setting
of a ROD (Record of Decision). Subsequent actions and decisions could
force adoption of other remedy(ies) than those originally undertaken by
the party. Result: redundant costs and an unwillingness to initiate.
For sites not yet on the NPL, there is no assurance that listing will be
avoided. Once EPA does a Site Investigation, it does not revisit a site
before scoring for the NPL, and is not prons to delay NPL listing in the
face of party cleanup actions. (This is a lost incentive opportunity.)
Example; Monsanto's Soda Springs Plant site was listed on the NPL
by the Agency in spite of prior cleanup and stabilization work
that supported a no-listing decision.
The Agency's preference for "permanence" in remedy selection is often
pushed without proper regard for the unproven technologies adopted. The
risk-balancing approach taken presses often for less than cost-effective
solutions, in spite of the shelters of continuing liability imposed by
the statute.
Voluntary or accelerated remediation will often run afoul of RCRA
Subtitle C requirements, either directly or as ARARS if pursued under
the NCP. The full and inhibiting burdens of permitting, financial
assurance, TSD standards and land disposal restrictions operate as a
strong disincentive to cleanup.
Many inefficiencies in the present NCP process tend to slow progress at
a site and to become points of conflict in a consnand-and-control
approach. When one or a few PRPs are involved, the potential for rapid
action is not realized in particular due to:
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PROPOSAL
The Agency should acknowledge that command and control does not lead to
voluntary or accelerated remediation of sites, that an alternative
approach is needed.
The Agency should devise and install approved procedures designed to
foster voluntary and accelerated corrective action. The Regions should
reassign a project officer to implement this alternative, providing
administrative review and approvals in a streamlined approach much less
bureaucratic than under the NCP. The procedure should provide for:
I Simple administrative reviews and approvals, as opposed to the
more elaborate NCP process (RI/FS, ROD, RD/RA).
/ Agency agreement to defer action on NPL listing where PRPs agree
to clean up, with any possible site scoring deferred until after
such cleanup action.
J Agency agreement to rescore NPL sites after cleanup, and delete if
warranted, if PRPs proceed voluntarily in advance of Agency action
on an enforcement approach (104 letters, 106 orders).
/ Commitment to support cost-effective decisions on remedy,
balancing risk and permanence. Stabilization and containment
should not be unduly discouraged as long as risk is addressed,
particularly where present technology for permanence is unproven
or costly. Once stabilized and if residual risk warrants,
technology development should commence and be implemented when
developed.
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RISK ASSESSMENT METHODOLOGY
FOR REMEDIAL ACTION
Submitted by Monsanto Company
June 24, 1992
PROLOGUE
A significant part of the problem with Superfund and other remedial actions comes from the over-conserva-
tive methods used to justify cleanups and establish cleanup standards. In part, this Is a consequence of
Congress not recognizing the relationship between land use and risk: by mandating use of, e.g., drinking
water standards as targets for remedial action, they implicitly assume that all contaminated media will be
used and accessed directly by a naive public. But in large measure this has come about because technically
incorrect methodology was adopted by EPA (and many states). If we could shift the risk assessment
methodology to be more scientifically accurate, estimated "risks' would come down by ten to one thousand
times sometimes more. Ultimate remedial actions may be less dramatically affected, because consider-
ations of cost and practicality occasionally lead to the "acceptable risk" levels at sites being greater than the
nominal target of 10"*. Obtaining change in the methodology would tend to level the playing Meld, help
public perception that the sites remain dangerous, and generally lower transaction costs. It would also be of
considerable value in those cases where field-level state officials (e.g., in New Jersey) are intransigent about
balancing feasibility against acceptable risk levels.
SITUATION
EPA and many states now use methodology for evaluating risks to human health and the environment at
hazardous waste sites that is flawed, using incorrect mathematics and based in part on obsolescent biology.
It gives greatly exaggerated estimates of the risk. In general, this leads to more extensive remedial actions
than would be justified by a more scientific appraisal of the risks. Even if the severity of remedial action is
reduced by site-specific negotiations, reducing resource requirements, it leaves the impression that cleanups
are less thorough than many would like. That is, exaggerated estimates cause the public to believe
incorrectly that residual risks are significant. It would benefit everyone if the methods used to evaluate sites
yielded a more realistic estimate of risks posed by contaminants present.
The process used to assess risks derives from methodology developed by the Food and Drug Administration
more than thirty years ago to set tolerance levels for food additives and contaminants. Two assumptions
fundamental to that method do not apply to evaluation of hazardous waste sites. First, the FDA method
assumes that a large fraction of the population will be exposed (because the food supply is involved)
typically tens of millions of people; yet the largest numbers really exposed at Superfund sites are in the
thousands, at most. This means that the likelihood 'is much lower that someone heavily exposed to a toxicant
is also extraordinarily sensitive to U. Cleanup standards can be less 'conservative"
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one upon another. FDA can make fairly accurate estimates of how much of different kinds of food are
eaten by people; they typically use the 90th percentile. of consumption to identify the "worst case". However,
exposures around waste sites arc predicted using complex formulae; the value chosen as "typical" commonly
represents something beyond the 99.9th percentile of actual exposure, because of the compounding of
conservative assumptions. Typically exposure is exaggerated by ten to one hundred times as a result. (For
example, current default methods assume that the most exposed person spends 34 hours a day for seventy
years breathing the outside air, whereas the average residence time is about 11 years, and people breathe
outdoor air only about four hours a day, on average. Thns the default in this scenario alone exaggerates
exposure about 40 times.)
In addition, an extra source of exaggeration enters when the contaminants are possible carcinogens, EPA's
method for dealing with carcinogens ignores some recent biological research, and further exaggerates risk 1ft-
to 1000-fold.
In consequence, the risk posed by residual contaminants is exaggerated at least ten-fold, and may be
exaggerated by as much as 100,000-fold.
These inappropriate methods are under attack from several directions; change is beginning to occur.
Exposure assessment methodology is changing most rapidly: industry, the academic community, and even
EPA's Office of Research and Development are advocating use of best estimates ("measures of central
tendency"), as determined through statistical-modelling (e.g., "Monte Carlo") techniques. The consensus in
the scientific community has become strong enough that a determined effort to force adoption of more
reasonable methods by the field is likely to succeed over a time frame of one to three years. In hazard, or
dose-response, assessment, change is coming more slowly. The direction to take in causing change is not
entirely clear (although it is less murky now than a year ago); the time frame for obtaining significant change
at the Region level is probably at least two to five years.
PROPOSAL
EPA should revise and communicate risk and exposure assessment guidance that permits use of more
science based, less hypothetical methodology,
EPA should ensure that site assessments done by Regional offices use the modern methods developed
and advocated by the Office of Research and Development, and now used by industry and independent
consultants.
EPA and industry should work together to develop support for amendments to CERCLA and RCRA
that allow remediation actions consistent with probable land uses. They should also consider the utility
of replacing the present cleanup goal language with something reading on the phrase, "reasonable
certainty that no harm will result from the residues remaining after remedial action is complete."
Government and the private sector should explore the technical and policy issues around the concept of
a "presumptive standard" for all the common site contaminants. In particular, the need for public input
into the standards chosen for this use would be critical.
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RISK MANAGEMENT AS
A TWO STAGE PROCESS
Submitted by Monsanto Company
June 24, 1992
PROLOGUE
EPA has begun to lake credit for removing the immediate risks to human health and the environment from
all NPL sites, as well as from many other sites not incorporated into the List Their claim apparently rests
on a broad consensus that remaining risks from hazardous waste sites are very small. This suggests a
strategy for changing the remediation process that rests on a conceptual division of the remediation process
into two steps: identification and removal of immediate threats, followed by a more thorough assessment of
future risks and remediation based on a balanced consideration of risk management options appropriate to a
site.
Public acceptance of this model for describing remediation would confer some significant benefits to the
discussion of policy changes needed over the next few years. First, it would aflow EPA (and the rest of us
interested parties) to claim credibly that Superfund has done the most important part of its job reducing
risks to health and the environment Second, it would allow a reasoned discussion of the implications of the
recent conclusion that current technology does not permit, in all cases, achievement of the "permanent
solution" remediation goal established in SARA,
SITUATION
The remedial action process is now generally conceived of as a continuous one, flowing from site identifica-
tion through a number of intermediate steps to a final cleanup. In consequence, "success" for EPA occurs
only when a site can be removed from the NPL. Moreover, tie presence of a site on the NPL is interpreted
as implying that it presents a significant risk to human health or the environment. This perception stands as
a significant barrier to reform of the remediation process.
In fact, the Agency invariably takes some sort of early action designed to reduce risks to human health and
the environment at all sites that get onto the NPL, as well as at non-NPL sites. These actions are usually
relatively cost-cffcctivc and follow a comraonsense public-health precept: when in doubt, reduce exposure by
the most expeditious means possible. The Agency has begun to claim credit for reducing risks at NPL sites
by these administrative or removal actions, and these claims have gone unchallenged by groups critical of the
Agency (eg,, GAO) who have been given the opportunity to challenge. A recent study by the National
Academy of Sciences supports the Agency. There seems to be a consensus among public-health profes-
sionals (and among epidemiologists in academia) that these actions generally succeed in reducing the risks
posed by hazardous wastes to an acceptable level This presents us an opportunity to make a change in the
way the remedial action process is viewed, and thus facilitate change in the process.
CHARACTERISTICS OF A TWO STAGE REMEDIATION PROCESS
The first stage of this new process would essentially be the existing one through to the point of initial
administrative or removal actions. After an initial site identification, EPA and/or ATSDR would conduct a
screening health assessment designed to identify the immediate sources of risk to the surrounding popula-
tions. (These sources could be any of the familiar ones: leaking drums, heavily contaminated soil or
groundwatcr, etc.) These assessments would be at most semi-quantitative: there would be no attempt to
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make an accurate estimate of the risk posed by the contamination, Instead, early action would be driven by
the existence of quantities of hazardous substances La situations that plausibly allow exposures within the
range public health professionals would consider immediately dangerous. Standard methods of toxicology
would be used to identify the dangers: for instance, presence of a 55-gallon drum of 50% sulfuric acid would
justify immediate action; presence of a pint of vinegar would not. (Obviously, the latter would be considered
trash and removed as part of a general de-trashificarioa.) There exists very widespread agreement among
public health professionals on the standards that would be employed in this kind of analysis; almost no
disagreements would ensue.
Monsanto already undertakes actions of this kind voluntarily and immediately if Monsanto material is found
at a site. Incentives to voluntary action would expedite administrative / removal actions of this kind, as well
The second stage would differ from existing practice, in that there would not be an automatic decision to
proceed to an ultimate cleanup. It would begin with an assessment of the risks to human health and the
environment posed by contaminants Tema«n'"B & &« s*te> much as is now done. This quantitative
assessment would verify the termination of the first high-threat stage. It would end with a characterization of
the most likely future risks, based on probable scenarios for future land-use, etc. (See accompanying paper
for a proposal regarding reform of the second-stage risk assessment.) This characterization would serve as
one part of the foundation for the remediation decision; feasibility, value- to the local comrnmimity, and cost-
effectiveness of various management options would also be factored into this decision.
PROPOSAL
EPA should formalize Us tentative description of the Superfund remediation process as taking place in
two stages. A procedure for carrying out first-stage evaluations and actions should be developed,
published for comment, and promulgated (if one does not already exist.) A procedure for second stage
assessment should be drafted, including a process for selecting cost-effective permanent status. EPA
should then announce the number of sites for which first-stage actions are complete, and a timetable
for completing such actions at all remaining NPL sites (if not afl are yet complete). If any of these
sites lack ATSDR Health Assessments, these sites should be given highest priority for completion by
this Agency. EPA should provide an annual public report of the status of first-stage actions, and
publicize it adequately.
Industry, with or independently of EPA, should maV« opinion leaders aware of the- inability to achieve
"permanent" remedies in many cases, coupling that to the policy alternative of basing remedy selection
on a balancing of risk-management goals.
Industry and/or EPA should draft language suitably amending CERCLA (and RCRA?) describing this
two-stage process.
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national
ground
association
PROVIDING AND PROTECTING
GROUND WATER FOR THE WORLD
6375 Riverside Dr./ Dublin, OH 430Ml U.S.A./ (614) 761-1711. FAX (614) 761-3446
STATEMENT
FOR
SUPERFUND REVITALIZATION PUBLIC MEETING
Submitted by:
Michael Apgar
National Ground Water Association
6375 Riverside Dr.
Dublin, OH 43017
614/761-1711
June 24, 1992
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Good morning. My name is Michael Apgar. I am a
professional hydrogeologist. I work for a state regulatory
agency dealing with the technical ground water contamination
issues, including those in the Superfund program. Today, I
am appearing on behalf of the National Ground Water
Association (NGWA).
NGWA is a nonprofit professional and trade society
representing all segments of the ground water industry. Our
more than 24,000 members include some of this country's
leading ground water scientists and engineers, ground water
contractors, and suppliers and manufacturers of ground water
related equipment.
Many NGWA members derive their livelihoods by conducting
Superfund investigations and remedies. As a result of this
experience, we are painfully aware of the lengthy process,
emphasis on documentation for legal purposes, high expense
and - all too often - limited reduction in risks to human
health or the environment entailed in Superfund projects.
We have been appalled, frustrated and often critical of the
Superfund program and its implementation.
Therefore, we view the current effort by EPA Administrator
Reilly and his senior staff to revitalize the Superfund
process with great enthusiasm, respect and support. We are
particularly interested in the objective of improving the
Superfund risk assessment and management process.
It has become apparent that remediation of ground water to
"health or risk-based levels" is usually time-consuming,
uncertain and - especially in the case of dense nonaqueous
phase liquids - virtually impossible. (To further explore
this matter NGWA will convene a symposium of ground water
experts this fall to present what is known about the
behavior and possible remediation of such contaminants. We
have invited and welcome the participation of EPA at this
meeting.)
Fortunately, it has also become apparent that cleanup to
specified risk-based levels often results in little or no
benefit in reducing real risks to humans or the environment.
This has to do with both the conservatively overstated risks
to contaminant exposures as well as the limited potential
for exposure at many sites.
Based on my experience in the Superfund Program, I
recommend the Superfund process be streamlined by
incorporating the following:
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o Make full use of existing hvdrogeoloaic
information (even if it was collected without Superfund
protocol but it is professionally reliable)
o Utilize professional experience and inference to
minimize the need to collect new data and adequately
understand contaminant nature, extent and likely fate.
o Minimize requirements for legal protocols (formal
plans, approvals, lengthy documentation) unless court action
is likely.
o Identify and mitigate real and imminent threats to
human health and the environment (make use of safe alternate
water supplies and/or treatment to prevent or avoid
exposure/risks)
o Emphasize risk reduction rather than reduction to
numerical contaminant concentration levels
o Modify the program expectations from "cleanup" to
"management" of ground water contamination (adequate to
protect human health and the environment cost effectively)
o In appropriate situations, coordinate with state
and local authorities who have responsibility over water
development and land use (to minimize the likelihood of
inappropriate development and inadvertent exposure to
contaminants)
o Favor employment of natural passive solutions over
costly active remediation to minimize and manage risks where
possible (often less intense solutions are at least as
effective and less costly than sophisticated engineered
proj ects) .
We must communicate effectively to the public the issues,
risks, and costs of Superfund sites. Rhetoric must be
defused so sound decisions can be made that emphasize public
health and environmental protection.
The National Ground Water Association applauds Administrator
Reilly and the leadership at EPA for taking the initiative
to revitalize the Superfund program. We pledge our
experience and abilities to assist in this process. Thank
vou.
/cr
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