THE EFFECTIVENESS OF THE SUPEPFTIND PROGRAM
CEROA SECTION 301(a)(l)(A) STtJDY
Final Report
Office of Emergency and Remedial Jtesponse
n.S. Environmental Protection Aaency
December 19R4
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Table of Contents
Page
EXECUTIVE SUMMARY ES-1
INTRODUCTION i
CHAPTER 1. REMEDIAL ACTIVITIES 1-01
Discovery and Investigation 1-16
Reducing Bnroediate Hazards 1-19
Understanding the Problem and Selecting Cleanup Action 1-31
CHAPTER 2. REMOVAL ACTIVITIES 2-01
Notifying the Government "of Hazards Substance Releases .... 2-02
Monitoring Non-Federal Cleanup Activities. 2-07
Short-Terra Responses to Hazardous Substance Releases 2-09
CHAPTER 3. CHARACTERIZING REMOVAL ACTIONS 3-01
Review of Past Removal Activities 3-01
Removal Action Case Studies 3-01
CHAPTER 4. ENFORCEMENT 4-01
Coordination With Removal and Remedial Programs 4-02
Notification of Potentially Responsible Parties and
Negotiation 4-05
Civil Litigation ' 4-13
Administrative Enforcement Actions 4-17
Cost Recovery 4-20
Natural Resource Damage Enforcement 4-23
Criminal Enforcement 4-25
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EXECUTIVE SUMMARY
The Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA or the Superfund Act) created a broad and complex system of
response and enforcement authorities to address widespread and complex
hazardous substance release problems throughout the country. The Act was
passed December 11, 1980, and EPA undertook the dual tasks of setting up
the administration of the Superfund program and at the same time initiating
response actions to address known hazardous release problems. The Superfund
program involves three major activity areas, removal and remedial cleanup
actions undertaken by the Fund and enforcement actions to secure responsible
party cleanups or to recover the costs of Fund-financed actions.
In its short existence, the Superfund program has undergone major
policy changes which have significantly affected the implementation
and accomplishments of the program. Some of these changes have evolved
with the Agency's growing experience with the program and our expanding
knowledge of the problems we have been charged to address. A number of
policy changes resulted from a major analysis and reevaluation of the
program undertaken in the spring and summer of 1983. .These policy
changes resulted in significant shifts in approach and emphasis in
the Superfund Program.
The most significant change that occured in 1983 was a shift from a
"negotiation first" posture to more prompt use of Fund resources and
formal enforcement measures to provide response to hazardous substance
releases. At the outset of the program, EPA was faced with a huge number of
existing and threatened hazardous substance releases and the need to
conserve Fund resources and use them most efficiently. EPA placed primary
emphasis on enforcement negotiations to achieve cleanup. Except under
emergency conditions, the Agency would attempt to negotiate settlements
before resorting to administrative and civil enforcement authorities.
This approach allowed EPA to conserve Fund resources for response at
sites with no potential responsible parties or where enforcement efforts
had failed.
As negotiations became prolonged, this policy led to significant
delays in achieving cleanup at sites. Therefore, EPA has developed a
more balanced approach which includes: initiating Fund-financed response
more promptly for both removal and remedial actions? targeting enforcement
resources on those sites where there is a greater likelihood of successful
action; and participating in a formal enforcement process which moves
from negotiation to civil or administrative enforcement in a reasonable
timeframe.
Another cause for delay in remedial actions was the timing requirement
for States' financial commitments to remedial efforts. States were
reguired to provide assurances for their share of the cost of Superfund
actions at the beginning of the remedial investigation/feasibility study
stage. This meant that States not only were reguired to pay part of the
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planning costs, but also that the States had to provide financial assurances
at a very early stage in the remedial planning process. The policy
changes in the spring of 1983 modified this requirement. EPA waived the
requirement for States to finance part of the planning costs. In addition,
States do not have to make their financial ccmmitment for a particular
phase of remedial activity until immediately prior to initiation of that
phase, when they know what the action and the costs will be.
Activity in the removal program stepped up significantly at this
time as well. In the first years-of the program, EPA took Fund-financed
removal actions only in urgent situations. There was a heavy stress on
encouraging States and responsible parties to undertake removal actions.
In 1983, this policy changed to allow SPA Regions to interpret the NCP
criteria for taking removal action more liberally. Consistent with the
NCP, removals could respond to significant potential hazards rather than
only to currently existing threats.
Also at this time, there was a shift in emphasis on the type of
removal actions that should be taken at National Priorities List (NPL)
sites. Previously, removals at NPL sites were limited to small-scale
stabilization actions to reduce only the most imminent hazards, e.g.,
of fire and explosion. This policy was expanded to encourage removals at
NPL sites that involved more extensive surface cleanup. The intention
was to avoid the need to return to sites more than once to undertake
stabilization activities.
Policy changes were also introduced that affected management of the
Superfund program. Previously, decision-making and approval authority
for Superfund actions had been very centralized at the Administrator or
Assistant Administrator level (with some very minor exceptions). Since
the spring of 1983, major portions of program decision-making and imple-
mentation authority were delegated to the EPA Regional Offices. The
program has become increasingly decentralized. This decentralization has
shortened the timeframe for approval of most removal and some remedial
actions and eliminated burdensome steps in the process.
An important program area in which EPA policy has been evolving
since the outset of the program is community relations. The safety and
concerns of the community surrounding a hazardous release site are critical.
Initially, EPA encouraged flexibility in tailoring community relations
activities to the needs of each site. It became apparent in late 1982
that there was a need for a more formal structure for community relations
activities. The structure that was developed combines a minimum number
of requirements with flexibility in how to implement the requirements.
The new structure also places greater emphasis on the continuing involve-
ment of the community and communication with EPA and State agencies
throughout the planning and implementation phases of a cleanup action.
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ACCOMPLISHMENTS OF THE SHPRRFUMD PROGRAM
the pace of the Superfund Program was slow at first, program
activities and accomplishments have arown, especially over the last 7
years. Throuqh FY R4, EPA and the Coast Ouard have started 472 removal
actions, at a cost of more than $87 million, since the becjinninq of the
program; 329 (78 percent) of these actions were initiated in fiscal years
1983 and 1984. in addition, under KPA administrative orders or consent
aqreements, responsible parties have initiated another fi7 removal actions.
The level of removal activity is particularly important, because this is
the mechanism throuqh which EPA can respond at sites which pose a siqnif i-
cant threat to human health, welfare, or the environment, but which do
not qualify for remedial fundinq.
In addition to undertaking direct removal actions, FPA monitors short-
term cleanup actions by States or private parties. This monitoring, either
by telephone or on-scene, provides specific advice and assistance and
ensures that appropriate cleanup action is taken. EPA's approach encourages
and assists response by responsible parties and non-Federal Government
agencies. At the same time, EPA may step in and take over the cleanup if
the action under way at the site is inadequate. The Agency provides such
on-site monitoring at 300-500 sites per year.
The pace of the remedial program has accelerated significantly during
1983 and 1984. Dvhile construction has been completed at only a few sites,
we can look to significant interim accomplishments which demonstrate that
we are on track to achieving a larqe nunber of cleanup actions. By the end
of PV 84, Fund-financed remedial investiqation/feasibility studies had
been started at 290 sites. -Fund-financed remedial design has been initiated
at 34 sites, and construction has been initiated at 29 sites. In addition,
enforcement action through the end of FY 84 has resulted in responsible
parties committing to undertake remedial investigation/feasibility studies
at 25 NPL sites and cleanup actions at 22 NPL sites. In total, remedial
investigation/feasibility studies have been started at 315 NPL sites,
design at 56 NPL sites, and construction at 51 sites.
A major area of accomplishment is investigation of potential hazardous
waste sites and expansion of the NPL. The EPRIR inventory has grown from
13,392 sites in late 1982 to 18,900 sites by the end of September 1984.
F,PA has devoted considerable resources to investigating the potential
sites that have been identified. As of September 1984, preliminary assess-
ments had been completed at more than 10,700 sites, and site inspections
had been completed at approximately 3,800 sites. The Hazard Pankinq
System has been used to score 1,732 sites. In September 1983, a final
NPL was promulgated containing 40fi sites, and the first update to the NPL
was proposed with 133 sites. The first update was promulgated on September 12,
1984, with 128 sites. The second NPL update was proposed on October 2,
1984, with 244 sites.
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EPA has developed a continuinq, phased process to investigate sites
and to identify those sites that are eligible for remedial cleanup. This
process allows us to establish sane priorities for ("ore detailed and
intensive invest iqation at sites, based on the likelihood that hazardous
substances are present, and on the potential threat from those sites.
FPA's Superfund enforcement efforts also reflect siqnificant
accomplishments, especially in the last 2 years. Neqotiation with potential
responsible parties has resulted in 144 consent decrees and consent
administrative orders: 100 of these aqreements were reached in Fiscal
Years 1983 and 1984. The value of the 144 settlements, in remedial and
removal activities undertaken by responsible parties is more than S3]0
million.
EPA has also issued 111 unilateral administrative orders, 107
of these were issued in fiscal years 1983 and 1984. Unilateral admini-
strative orders are used to compel responsible parties to clean up
sites, and EPA may initiate precedent-settinq treble damage suits aqainst
some of those parties who have not complied with the unilateral admini-
strative orders. In addition, the Department of Justice has filed 72
cases which have been referred by EPA for civil litiqation. Forty-eight
of these cases were filed in fiscal years 1983 and 1984.
The success of these enforcement efforts is very encouraginq for
conservation and careful use of Fund monies. EPA is demonstrating its
commitment to seek negotiated settlements as far as possible, but to
proceed with formal enforcement mechanisms when negotiations do not
result in appropriate settlements. Over the longer term, these accomplish-
ments may prove to be a strong incentive for more negotiated settlement
agreements in the future.
cost recovery efforts got off to a slow start because of the
time required to complete Fund-financed action and to secure adequate
documentation of expenditures, as well as to establish the procedures
which would be followed. As of September 30, 1984, however, EPA has
recovered S6,94],196.
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INTRODUCTION
The Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA or the "Superfund" Act), enacted on December 11, 1980, provides
the President with broad authority to undertake cleanup of hazardous
substance releases to protect public health, welfare, and the environment.
In addition, the President has authority to order parties to clean up any
releases or threatened releases for which they are responsible. CERCLA
also creates a strict system of strict responsible party liability for any
cleanup costs that are incurred when the Federal Government responds to a
release. The Act creates a $1.6 billion Hazardous Substance Response
Trust Fund (the Trust Fund or the Fund) to finance Federal cleanup action.
The President delegated .primary responsibility for implementing the
Superfund Act to -the 'EPA in-Executive Order 12316. As required by CERCLA,
EPA promulgated ;a -revised National Oil and Hazardous Substances Contin-
gency Plan (NGP') on*Iu!y 16, 1982. The Rational Contingency Plan had
originally been promulgated under section 311 of the Clean Water Act.
The Act and tbe NGP pirovide the regulatory framework for the cleanup of
hazardous substances;;by ;EPA .and other Federal agencies. Under this
framework, EPA has established a Superfund program with three major
program elements —renewal, remedial, and enforcement actions — to carry
out the responsibilities in the Act.
CERCLA's removal authority provides a powerful tool for providing
rapid effective response to threats to public health, welfare, and the
environment. CERCLA defines removal as "the cleanup or removal of released
hazardous substances from the-environment, such actions as may be necessary
taken in the event of the threat of release of hazardous substances into
the environment, ...such other actions as may be necessary to prevent,
minimize, or mitigafee damage to the public health or welfare or to the
environment, which jnay otherwise result from a release or threat of
release."
Removal actions are limited in scope by CERCLA section 104 (c)(l) to
$1 million of Fund -monies and six months from the date of initial response.
Removals may be exempted from the $1 million and 6 month limits if all
of the following .conditions are satisfied: (1) continued response actions
are required to prevent, limit, or mitigate an emergency; (2) there is an
immediate risk to public 'health or welfare or the environment; and (3)
such assistance will not otherwise be provided on a timely basis.
The NCP establishes tswo categories of removal actions. Immediate
removals are to respond to situations of immediate and significant harm.
Planned removals are to respond to situations which require an expedited,
but not an immediate response. Under EPA's general grant authority, the
Agency also requires 'that a State must request a planned removal action
and must fund a 10 percent share of the response costs.
The elements of the emergency response program are built on the same
program elements previously established and tested under section 311 of
the CWa. However, the CERCLA program is much broader than the section
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311 program. The U.S. Coast Guard (USCG) fulfills a vital and independent
role in the Superfund program. Under Executive Order 12316 and the
NCP, the USCG has response authority for releases of hazardous substances
into or threatening the coastal zone, U.S. waters of the Great Lakes, and
specified ports and harbors on inland rivers. The USOG staff, aided by
their Atlantic, Gulf, or Pacific Strike Team take immediate removal
actions in response to these releases.
The USOG also operates the National Response Center (NRC), which is
open around-the-clock to receive reports of hazardous substance spills
and discharges. The 10 EPA Regional Offices also have 24-hour hotlines
to receive notifications. CERCLA requires that when a release exceeds
certain reportable quantities for the substances involved, it must be
reported to the NRC.
When the Federal Government is notified of a release of a hazardous
substance from an accident or an uncontrolled waste site, EPA or the USCG
staff known as on-scene coordinators investigate the release. In most
cases responsible parties or state or local government agencies respond
to the release, and the on-scene coordinator monitors the cleanup action.
Remedial activities are the second major element of the Superfund
Program. Remedial cleanup activities are directed to the most serious
hazardous release problems and provide the most extensive cleanup. CERCLA
CERCLA defines "remedy" or "remedial action" as "those actions consistent
with permanent remedy taken instead of or in addition to removal actions
in the event of a release or threatened release of a hazardous substance
into the environment, to prevent or minimize the release of hazardous
substances so that they do not migrate to cause substantial danger to
present or future public health or welfare or the environment." CERCLA
also establishes a clear role for States in remedial response actions.
States must fund 10 percent of the cost of remedial actions, unless the
site was owned by the State or a political subdivision of the State. In
that case, the State must provide at least 50 percent of the cost of the
remedial action.
States have the opportunity to undertake the remedial cleanup activities,
if they choose, or they may coordinate with EPA to take the lead. The
roles and responsibilities of the State and EPA are established in a
cooperative agreement or Superfund State contract for State or Federal
lead actions.
EPA's remedial program has two distinct phases of activities. The
first is site discovery and investigation. During this phase, EPA identifies
and investigates potential hazardous releases. This involves several
steps to scope out the extent of the problem associated with the releases
or potential releases. Finally the more serious releases are scored
using the Hazard Ranking System (HRS), and those scoring 28.5 above or are
entered on the NPL after notice and opportunity for public comment. This
meets the requirement in CERCLA section 105 that the President (EPA)
establish a national list of priorities among known releases or threatened
releases, and establish criteria for determining priorities among releases.
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The second phase of activity is planning and implementation of
remedial cleanup activities. The NCP limits remedial cleanup activities
to those sites which are on the NPL. This phase is very lengthy and
expensive. Before remedial planning can begin at a site, EPA and the
State must sign a cooperative agreement or Superfund State contract. The
activities during this phase are preparation of a remedial investigation
and feasibility study, choosing the remedial alternative, and design and
construction of the remedy.
The third major element of the Superfund program is enforcement.
Both Congress and EPS recognize the limitations of the Fund in addressing
the potentially thousands"of hazardous substance releases around the
country. The purpose of the Superfund enforcement program is to ensure
responsible party cleanup of hazardous substance releases and threatened
releases whenever possible and to recover the costs of Fund-financed
cleanup actions^
Two sections of CERCLA form the basis of EPA's Superfund enforcement
authority:
o
Section 106 authorizes EPA to issue administrative
orders or to pursue1 civil actions in the courts compelling
responsible parties to take appropriate cleanup action
in response to a release that may present an imminent
and substantial endangerment to public health or
welfare or the environment; and
0 Section 107 makes responsible parties liable for the
costs incurred by Federal or State Government or private
parties in taking appropriate response to a release.
This section also makes responsible parties liable for
up to three times the cost of any response made necessary
by the failure, without sufficient cause, of the parties
to comply with an administrative order issued pursuant to
section 106* In addition, responsible parties are responsible
for the costs of natural resource damages.
Negotiation with potential- responsible parties is an essential part of
the enforcement process. Negotiations before a removal action are
kept to a strictly limited time frame. Negotiation may take place at a
number of different points during the remedial planning process to reach
agreement on private party cleanup, as well as after a Fund-financed
cleanup; is completed to reach agreement on cost recovery. However,
agreements reached through negotiations are made formal through a consent
administrative order or a consent decree. Where negotiations fail, EPA
may atftiempt t6 secure private party cleanup or cost recovery through
unilateral adminstrative orders or civil action.
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The three major elements of the Superfund program are interrelated
in several ways. Enforcement action may be pursued at specific points
during the remedial process, and may, in fact, be going on at the same
time as Fund-financed response. When EPA identifies the need for a
removal action, timely enforcement efforts may secure private party
cleanup and eliminate the need for a Fund-financed response. EPA and the
States must be careful in conducting Fund-financed response actions so
that adequate evidence and documentation are available for cost-recovery.
Discovery and investigation activities during the initial phase of
the remedial program may lead to the identification of releases that
pose an immediate threat and should be subject to a removal action. In
addition, sites which are listed on the NPL may pose an immediate threat
which EPA can repond to most effectively by taking a removal action.
The following report discusses in detail how the Superfund program
operates and how it has changed over time.
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1. REMEDIAL ACTIVITIES
lOTROniiCTldN
Cleanup of larqe, abandoned or untended hazardous waste sites is the
focus of remedial response activities in the Superfund program. EPA's
remedial activities fall into two distinct areas of effort. The first is
discovery and investiaation of potential hazardous releases and waste sites
and identification of the more serious sites where EPA will undertake
long-term cleanup actions. These activities establish a systematic approach
to set priorities arriona thousands of sites. Each successive phase of
action involves a more intensive resource commitment to expand our knowledqe
of hazardous release problems at sites. The purpose is to progressively
target attention and resources to those sites that pose potentially more
serious problems.
The second area of effort is accomplishing cleanup at those sites that
have been targeted f6r Remedial action. This is a long-term intensive
effort to determine precisely the extent of the problem at the site; choose
a preferred cleanup alternative; and implement the cleanup at the site.
This is in a sense a "pipeline" process, since each phase must be completed
before proceeding to the next. The number of sites in a particular
phase is an indication of how many sites may be expected to move into the
next phase.
Exhibit 1-1 presents the progression of RPA's remedial activities in
the Superfund program.
DISCOVERY AND INVESTIGATION
Discovery
This initial 'phase of activity entails four specific steps, generally
performed seguentiaMy. 'These are site discovery, preliminary assessment,
site inspection, and listing on the National Priorities List. The purpose
of site discovery is to identify all releases and potential releases of
hazardous substances to ensure that they are brought to the attention of
the appropriate authorities. Some site discovery activities involve Federal,
State, and/or local iqoverrwents, while others are activities reguired of
private parties. Different discovery methods are described below.
CERCEA section 105(1) states that the National Contingency Plan shall
include Methods for discovering and investigating facilities where hazardous
substances are located. Section 300.63 of the National Contingency Plan
lists the following methods for site discovery:
notification. Section !D3(a) of CEPCLA requires
persons in 'charge of a facility to contact the National Response
Center — a national emergency response clearinghouse operated
by the Coast Guard — when a hazardous substance release eguals or
exceeds its Federally specified reportable guantity. This is an
ongoing notification process.!
Notification is discussed in detail in Chapter 9, "Removal Activities."
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EXHIBIT 1-1
EPA's REMEDIAL ACTIVITIES
Sites Discovered
(18,884 Sites)
I
Preliminary Assessment
< 10,76 7 Completed)
Site Inspection
( 3,601 Completed)
Hazard Ranking System Scoring
(1,732 Sites)
I
Sites Listed on the NPL
(538 Sites)
I
Remedial Investigation/Feasibility Study
(315 Started^)
Remedial Design
(56 Started)
Remedial Construction
(51 Started)
§/ Numbers Reflect Actual Program Data As Of September 30, 1984.
Includes Responsible Party Actions.
Source: Office of Emergency and Remedial Response, U.S. EPA.
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EXHIBIT 1-3
BREAKDOWN OF PRELIMINARY ASSESSMENTS
No Further
Action
(3,751 Sites)
Preliminary Assessments
(10,767 Completed)
Currently
Pending ^
(3,415 Sites)
Site Inspections
(3,601 Completed)
ay "Currently Pending* Category Includes Sites That May Require Additional
Information To Determine Whether A Site Inspection Is Necessary
Source: Office of Emergency and Remedial Response, U.S. EPA
(September 30, 1984)
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EXHIBIT 1-2
NUMBER OF SITES ON ERRIS BY QUARTER,
FISCAL YEARS 1983 AND 1984
NUMBER
OF SITES
19.000-
18,000-
17.000-
16.000-
16.000-
14.000-
13,000
18.223,
17,534
16,703
18,397
16.806
18.028
15.410
18,884
FY 1983
FY 1984
Source: Office of Emergency and Remedial Response, U.S. EPA
(September 30. 1984)
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o Section 103(c) required owners or operators, within
180 days of CERQA's passage, to notify EPA of the
existence of certain hazardous waste treatment,
storage, and disposal facilities and any known,
suspected, or likely releases of substances from any
facility, unless the facility had been issued a
permit or accorded interim status under the jtesource
Conservation and Recovery Act, Subtitle C. As discussed
below, 4,nnn sites were identified by this process.
o Investigation by government authorities. Section lD4(e)
of CERCLA requires persons who treat, store, or dispose
of hazardous substances, to assist the government in
determining the need for response to a release,
Compliance may involve furnishing records of substances
or permitting government access to a facility for
inspection or sampling purposes. The CERCLA section
104
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EPA also used information contained in two other data bases. The Site
Tracking System operated by EPA's office of Enforcement added 3,200 potential
sites. Another major source for discovering sites was the Hazardous Waste
Data Management System. Facilities in this data system that filed notifi-
cations with EPA or the states under the Pesource Conservation and Recovery
Act, but later did not submit a Part A application for interim status, were
added to the Emergency and Remedial Response Information System data base.
this added another 2,300 sites, after eliminating duplications.
Ry the end of 1982, compilation of the various data bases was complete
and the Emergency and Remedial Response Information System was ready for
use as an inventory for tracking hazardous waste sites. Exhibit 1-2 shows
the expansion of the Emergency and Pemedial Pesponse Information System.
Other sources of discovery, such as reports from citizens and state and
local officials, were also added to provide an initial total of 13,392
sites in the central data base.
Additional sites have been added as they are reported to EPA and a
significant group of sites was added by the states in 1983. As of
September 30, 1984 the Emergency and Pemedial Response Information System
contained data on 18,884 sites. Because site discovery efforts are con-
tinuing, EPA anticipates that the number of discovered sites will reach
approximately 22,000 by 1986. Fbr example, EPA continues to receive
citizens' reports of suspected sites, as well as reports from police, fire,
health, and other local and State officials. Reports of industrial and
transportation accidents are potential sources for supplementing the existing
data base. Some states are also using more systematic methods of discovery
such as industry waste stream tracking or aerial photography. Also, as
resources allow, EPA may undertake more targeted discovery efforts. There
are several types of sites that may increase the current inventory of
sites. Briefly, these sites include the following:3
Municipal Landfills; An investigation of municipal landfills could add
significantly to the number of known hazardous waste sites. Many municipal
sites accepted both municipal and industrial wastes that may have contained
hazardous materials. Although little attention has been focused on these
sites to date, many hazardous waste problems have already been identified
at municipal landfills.
Facilities Permitted under the Resource Conservation and Recovery Act;
The number of sites on ERRIS could increase if certain facilities regulated
under the provisions of the Resource Conservation and Recovery Act become
Superfund sites. The likelihood that a facility regulated by the Pesource
Conservation and Recovery Act will become eligible for a Superfund response
will depend on the probability that (1) a release will occur at the facility
and (?) that private or other sources of public funds will be available
for remediation in the absence of a Superfund response.
3 For a more detailed discussion of the extent of the hazardous substance
release problem, see the CERCLA Section 301(a)(l)(C) study.
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Regulations promulgated under the Resource Conservation and Recovery
Act have minimum requirements for financial responsibility. However, these
regulations cannot guarantee that releases will not occur or that all
owners or operators will have the financial strength to cover these costs.
Facilities with interim status under the Resource Conservation and Recovery
Act may go bankrupt or fail to comply with operational standards and could
potentially become Superfund sites. Furthermore, the regulations cannot
guarantee that a facility will not be abandoned or that funds will he
available after the end of the post-closure care period. The number of
currently permitted facilities that may become Superfund sites will depend
largely on future EPA regulations inder both the Resource Conservation and
Recovery Act and Superftnd programs.
Rites Involving Radioactive Wastes; The CERCLA section 101(22)(c)
definition of "release" specifically excludes some releases that are re-
gulated under the Atomic Rnergy Act and the draniut Mill Tailings Radiation
Control Act.4 Because of uncertainty over jurisdiction for these different
types of facilities, sites involving radioactive wastes may not have been
systematically reported to EPA.
Excluded releases are:
0 Release of source, byproduct, or special nuclear material from a
nuclear incident as defined in the Atomic Fnergy Act of 1954
(ABA, 42 U.S.C. 2011, et seq.), if such release is subject to
requirements with respect to financial protection under Section
170 of the AEA.
0 For the purposes of Section 104 of CERCLA or any other response
action, any release of source, byproduct, or special nuclear material
from any processing site designated under Section I02(a){l) or Section
302(a) of the Uranium Mill Tailings Radiation Control Act of 197R
(WfTPCA). There are approximately 25 sites designated under these
sections of UMTRCA: the Secretary of Ehergy may designate additional
sites.
0 In addition, EPA has adopted the policy that it will not use
Superfund authorities to respond to releases from any facility with
an effective materials license from the Nuclear Regulatory Commission,
because the Agency believes that the Commission has the authority to
control releases from such facilities. However, EPA will consider
Superfund response to a release formerly, but not currently, licensed
by the Nuclear Regulatory Commission. EPA will also consider response
to releases from facilities which are licensed by Agreement States
(States with authority to license the handling of radioactive materials
under agreement with the Nuclear Regulatory Commission). Releases in
which radicnuclides are inseparable frcm other nonradioactive hazardous
substances are also covered by CERCLA. Radioactive releases from
uraniun mining and processing sites which are not specifically
designated by UMTRCA are also covered by CERCLA.
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Federal Facilities; Prior to October 19RA, no Federal facilities were
placed on the National Priorities List. It is Generally thought that
Department of Defense sites constitute about 85 percent of all federal
facility sites. In this case, F.PRIS already contains a larqe percentaqe
of all potential federal sites. However, as a aroup, Federal facilities
constitute only 3 percent of the total number of sites on EPRIS. There may
still be a number of unlisted Federal facilities helonoinq to such aoeneies
as the Department of Energy, the Department of floriculture, and the Depart-
ment of the Interior. The October 1984 proposed update to the National
Priorities List includes 36 Federal facilities.
agricultural Hse of Pesticides; Several instances of around water
contamination resulting, from the aciricultural use of pesticides have been'
reported in the past several years. FPA is currently monitoring wells and!
qround water in areas where such contamination is likely to occur. To
date, F.PA has found at least 15 different pesticides in at least 20 States*
It is, however, too soon to'1 estimate the size of this problem that may
require Superfund response. Sueh releases could conceivably expand the:
scope of Superfund veil beyond the number of hazardous substance problems
envisioned when Superfund was created,
Leaking Underground Storage Tanks;: nhtil recently, reported- releases
from underground tanks used to store gasoline or hazardous substances wete
United to random incidents that were handled by States and localities. In
the past three to five years, EPA and State and local governments- have been
working to increase public awareness of the potential problems of underground1
storaqe tanks. This effort has resulted in a growing number of reports of
leaking underground tanks,, and it is expected that many additional cases
will be discovered in the future.
Mining Wastes; Although mining wastes are not specifically designated
as hazardous substances under CEPCLA, they may contain constituents designated
as hazardous substances under section 101(14) of CEPCLA. F.PA actions at
sites can be considered as responses to threats posed by hazardous substances
(e.g., lead, cadmium, zinc) contained in the mining wastes. The courts to
date have supported this position (See, for example, n.s. v. Metate Asbestos
Corp., (D.Az.Ap.lO, 1984).
In a survey of abandoned mines, the Office of Surface Mines identified
450 abandoned mines that could present a potential hazardous substance
problem. After Pegional review and further site investigation, EPA added
85 sites to the Fjnergency and Remedial Response Information System. Because
of the initial uncertainty over the status of mining wastes, however, mining
waste sites may not have been identified as systematically as other sites.
Additional mining waste sites may be reported to EPA which could increase
the current inventory of hazardous waste sites.
Future Discovery F.fforts; Sites which a particular state is aware of,
hut has not reported to EPA, have not been entered in the data base. For
example, a State may wish to take enforcement actions at a site and not
involve EPA, and thus does not inform F.PA of the existence of the site.
These sites may be added to RRRIS in the future.
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All levels of government are responsible for carryinq out scne aspects
of site discovery. RPA has initiated certain methods of discovery, such as
the CFPCLA section 103(c) notification process. Because initial discovery
efforts identified a larqe percentage of the more severe and visible sites,
additional efforts are likely to be more resource-intensive. Such efforts
will involve record searches and creative approaches to identify sites.
EPA is currently developing a method to systematically evaluate various
industries to determine categories of waste generators which are more likely
to involve hazardous release problems that require Superfund action.
Generally, FPA's approach has been to compile a broad inventory of
sites that may present potential problems. As a result, the Agency's
experience has been that up to two-thirds of the sites in ERRIS that have
received further investigation do not contain hazardous substance release
problems. As the Agency undertakes more targeted discovery activities it
is likely that a higher percentage of sites entered into the inventory
will actually have hazardous release problems.
Preliminary Assessments
After a site is discovered and entered into the Emergency and Remedial
Response Information System, EPA or the State response agency conducts a
preliminary assessment to determine what future actions need to be taken.
As of September 3fl, 1984, preliminary assessments have been completed at *n
percent of the approximately 1ft,QOO sites in the data base. The order in
which sites receive preliminary assessments is based upon the sites' apparent
hazard potential.
A preliminary assessment is an initial evaluation of the potential risk
posed by a hazardous waste site. The purpose of the preliminary assessment
is to: (1) eliminate those sites from consideration which pose no threat
to public health and the environment; (2) determine if there is potential
for immediate danger to persons living or working near the facility; and
(3) establish the priority for scheduling a site inspection. Initially,
only EPA Regional Offices, with assistance from contractors, conducted
preliminary assessments. Currently, the majority of preliminary assessments
are scheduled to be conducted by States with funds provided through one-time
awards under section 3012 of the Resource Conservation and Recovery Act and
cooperative agreements with EPA.
Federal, State, and local government files, reports, and court documents
may be reviewed to gather data for a preliminary assessment. Sources such
as State water resource offices, local planning agencies, the U.S. Geological
Survey, and private and public well logs may be used. In certain situations,
a perimeter survey of the site is a part of the preliminary assessment.
Preliminary assessments seek to determine:
o Hazardous substances present. Where specific hazardous
substances have been identified, the preliminary assess-
ment seeks to identify known hazard characteristics such
as toxicity, flammability, infectiousness, water solubility,
volatility, soil blending affinity, and persistence.
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o Pollutant dispersal pathways . Identifying potential
pathvrays involves considering the geologic, hydrologic,
and climatologic features of the site to determine
possible routes of exposure to receptors, or searching
for existing monitoring data that could identify a
pollutant's movement.
o Population and resources . 'this involves examining
target populations and resources that may he affected by
a release.
o Facility meaFig^peftt practices. Characterizing site
management practices may inclirle describing site
security practices and specific treatment, disposal, or
containment procedures (e/g., incineration). Past site
operations can be evaluated through aerial overflight
photographs .
o Responsible parties. Data is gathered on site owners
and operators, including whether the site is publicly
owned by the federal, state, or local government or
whether it is privately owned.
The output of the preliminary assessment is intended to classify a
site's priority for further investigation. The preliminary assessment also
helps to identify data gaps to he filled during site inspections. Depending
on the findings of this report, the site may require an immediate removal
(see Chapter 2); otherwise it is classified according to one of three
categories:
o Wo further action sites. Such sites pose no threat to
public health or the environment, and thus warrant no
further investigation or remediation. Such sites were
initially identified as hazardous waste sites, hut
further investigation revealed that the site posed no
serious problems.
o Pending si tes . These sites require additional
information to evaluate if a site inspection is necessary.
For example, sites that may be under the jurisdiction
of the Ftesource Conservation and Rscovery Act may he
categorized as "pending," Most of the sites in this
category will eventually undergo site inspections.
o Inspection sites. These are sites that have undergone
site inspection*
Exhibit 1-3 illustrates the nunher of sites that have been placed in these
three categories after completion of the preliminary assessment, as of
September 30, 19R4.
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Site Inspections
The purpose of a site inspection is to further define the problem
posed by a waste site, or to reduce the uncertainty associated with a site.
Kor those sites that may require RPA action, the site inspection supplements
information collected during the preliminary assessment. The order in
which sites are inspected is determined by the results of the preliminary
assessment.
The objectives of a site inspection are to:
o Determine what, if any, further action is necessary;
o Determine if there is any immediate danger to people
living or working near the facility;
o Provide a sufficient data base to determine whether a
site should be included on the National Priorities list;
o Confirm preliminary assessment data that are otherwise
poorly substantiated; and
o Update knowledge of si be conditions, if there are
indications that changes may have occurred at the site.
A site inspection generally provides the data necessary for the FPA
Hazard Ranking System. The activities conducted for site inspections are
considerably more extensive than for the preliminary assessment. In par-
ticular, site inspections require environmental sampling to identify the
presence of particular hazardous materials and the degree of migration of
the substances. A significant amount of time and money is required for the
development of work and site safety plans, legal considerations (e.g.,
obtaining site access), equipment preparation, and completion of laboratory
analyses. During sampling, quality assurance/quality control must also be
carefully maintained and chain-of-custody procedures must be followed.
Depending upon the time it takes to analyze samples and ensure quality of
results, it may take from one to six months to complete a site inspection .
EPA discourages conducting geophysical testing, groundwaber monitoring,
well installation, studies to identify the precise extent of contamination,
and other activities that require specialized techniques during the first
site inspection visit. If these are necessary, they are referred for a
follow-up si be inspection.
The findings that result fron a site inspection are categorized in a
manner similar to those resulting from a preliminary assessment. Data
provided in EPA's Potential Hazardous W&sbe Site Inspection Report, which
is completed for each inspected site, are used to classify the sibe in
one of four categories:
o Nb further action sites. Such sites do not pose a
threat to public health or the environment and do not.
require remedial attention. This decision is unccmtton
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for properly identified hazardous release sites. The
cateoory may contain sites for which data from the
preliminary assessment were inconclusive, but that
proved to he non-hazardous after inspection.
o Pending sites. These sites inay only reouire monitoring,
and can be examined at a later date to see if a
significant threat is posed. Alternatively, pendinq
sites may not he evaluated adequately with available
information. The inspection may show that some hazard
exists, but a follow-up site inspection is required to
determine the potential threat to public health or the
envirornent.
o Hazard Ranking System. These are sites that pose a
significant threat and for which there are sufficient
data to assiqn a hazard rankinq score. (The. Hazard
Ranking System is discussed below.)
o Emergency Cleanup. The results of the site inspection
may indicate that emerqency cleanup action is needed at
the site. If this is the case, the EPA reqional office
or the state then determines what action may be
warranted. In some cases, the site may fall under the
jurisdiction of the Resource Conservation and Recovery
Act or the Nuclear Requlatory Commission and the site
will be referred to the appropriate persons for follow-up.
Currently, EPA Reqional Offices, throuqh the use of the Field Investi-
gation Team contractors, perform the maiority of site inspection activities.
In some cases, a follow-up site inspection may be necessary if more data
are needed to score the site using the Hazard Ranking System. At this
staqe, more sophisticated techniques may be applied if appropriate. Fbllow-
up site inspections may be several times more expensive than the initial
site inspection.
Listing on the Mational Priorities List
The Hazard Rankinq System was desiqned to fulfill the CERCLA requirement
that the President identify at least 400 facilities in the nation warrantinq
the highest priority for remedial action. The Hazard Ranking System provides
a systematic approach for setting priorities among several thousand widely
varying hazardous waste sites.
The ranking system measures the relative severity of the problems at
the site and the likelihood and potential magnitude of human and sensitive
environmental exposure to hazardous substances. A score is developed for
each release or potential release based on its impacts on (1) ground water,
(2) surface water, or (3) air. These three scores are then weighted and
combined to yield an estimated hazard ranking score. The scores can range
from n (least hazardous) to 100 (most hazardous). The Hazard Ranking
System was not designed to distinguish accurately between the risks presented
by two sites whose scores are similar, but it is a meaningful indicator of
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different levels of risk between sites with large differences. The hazard
ranking scores are weigh ted to increase the scores given to sites that
threaten densely populated areas, that have a greater likelihood of exposure
to the affected population, or that contain large volumes of waste.
The Hazard inking System was developed to give consistent results
when used by a wide range of people, within and outside FPA. The process
for using the Hazard Ranking System to score a site and determine which
sites are placed on the National Priorities List involves the following
tasks:
o Data assembly. Generally, a review of the site
inspection is sufficient for determining a hazard
ranking score. However, additional information may be
collected in the field, A standard form is used to
docijnent the scoring.
o Regional quality control. EPA Regional staff check
each score and prepare data to be submitted to EPA
Headquarters. Sites receiving scores of 25 or above
are to be forwarded to EPA Headquarters .5
o Quality assurance/quality control by FPA Headquarters.
For the National Priorities List promulgated on
September 8, 1983, SPA Headquarters staff reviewed the
evaluations and conducted quality assurance airiits on a
sample of sites to ensure accuracy and consistency in
the scoring. For the first and second updates of the
National Priorities List, all sites were reviewed for
quality assurance/quality control. Where appropriate,
hazard ranking scores for individual sites ware
recalculated by EPA Headquarters.
o Proposed rule. A proposed rule is published in the
Federal Register, listing sites proposed for the
National Priorities List.
o Rulemaking requiremen ts . After a 60-day public comment
period, ccmments are received and considered, and a
final rule is promulgated.
The National Priorities List serves as an information tool for EPA to
identify sites that appear to present a significant risk to public health or
the environment. Inclusion of a site on the List does not mean that FPA
necessarily will undertake response actions, nor does it. determine the
liability of any party for the cost of cleanup at the site.
5 Although the cutoff score for placing a site on the National Priorities
List is 28.5, EPA Regional staff are asked to submit sites with scores of
25 or above because in the quality assurance/quality control process EPA
Headquarters may add points that would increase a site's score to 28 .5.
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The National Priorities List: currently lists 538 sites. s .Section
105(b) of CERCLA also requires "to the greatest extent practicable" that
the List include at least one facility designated by each State within the
100 highest priorities. This designated facility is to pose the greatest
threat to public health, welfare, or the environment among known facilities
in that State, and does not have to receive a Hazard Ranking System score
'! of 38.5. Eight of the 56 designated sites currently on the List do not
have a score of 28.5 (including one in Guam and one in the Commonwealth of
the Marianas).
In accordance with CKRCLA requirements, the National Priorities List is
updated annually. Sites may be placed in a deletion category if:
o EPA, in consultation with the State, has determined that
responsible parties have completed all appropriate
response actions?
o All appropriate Fund-financed cleanup actions under
CERCLA have been completed, and EPA has determined that
no further cleanup by responsible parties is appropriate? or
o EPA, has determined, based on the remedial
investigation, that the site poses no significant threat
to public health or welfare or the environment and,
therefore no remedial action is appropriate.
Goals and Related Policies of Site Discovery and Investigation
While the goal of site discovery and investigation — to identify all
potential hazardous substance releases and ensure that they are brought to
the attention of the appropriate authorities — has remained the same
throughout the first three and one-half years of the Ruperfund program, the
emphasis on different phases in the process has changed significantly.
These changes reflect EPA's belief that many of the sites posing more
serious problems have been identified and EPA resources should increasingly
focus on further assessment and inspection of these sites.
One major change is the priority assigned to site discovery, initially,
the emphasis was on completing the CERCLA section 103(c) notification
process and on merging Federal and State inventories and creating the
Emergency and Remedial Response Information System. In late 1982, EPA
received a one-time appropriation to allocate funds to States to conduct
site surveys and inspection process, tinder this program to implement
section 3012 of the Resource Conservation and Recovery Act, EPA identified
6 48 PR 175, September 8, 19«3 (406 sites were placed on the final List);
and 49 FR 90, May 8, 1984 (4 sites proposed on September 8, 1983 were placed
on the final List). Seven sites are listed as pending, and 128 additional
sites were placed on the final list in September 1984. These sites were proposed
in the September 8, 1983 Federal Register.
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funded activities in the following order of priority: preliminary assess-
ments, site-inspections, responsible party searches, discovery, and site
inspection follow-up.
RPA's targets, set in May 1983, are to: (1) complete preliminary
assessments for all sites on the Bnergency and Remedial Response System hy
the end of fiscal year 1986; and (2) complete site inspections for sites
that warrant inspection after the preliminary assessment by fiscal year
1987. Whereas EPA had been responsible for conducting most of the pre-
liminary assessments prior to mid-1983, the States are now responsible for
these activities with 3012 awards and funding provided in cooperative
agreements. EPA will conduct approximately 75 percent of the site inspections,
with States conducting the remainder.
There have been no major policy changes related to the Hazard Ranking
System. The one criterion in the National Contingency Plan for listing
sites en the National Priorities List is a sufficiently high hazard ranking
score. In the first update to the National Priorities List, EPA proposed
the addition of the Ouail Run Mobile Manor site, Rray Suimitt, Missouri to
the List, although the site's total score was below the 28 .5 cutoff. In
adding the Ouail Pun site to the List, EPA stated its intent to "amend the.
National Contingency Plan to authorize consideration of limited criteria
other than the total hazard ranking score for purposes of including sites
on the National Priorities List." In amending the National Contingency
Plan, EPA will consider using health assessments or advisories issued by
other Federal agencies.
EPA's policies related to the Hazard banking System and the National
Priorities List may be altered by the Federal Courts as a result of a
nunber of law suits that have-been filed against EPA. The major issues
being raised in the cases include:
o The integrity and accuracy of the Hazard Ranking .System;.
o EPA's authority to respond and therefore to list sites with
mining wastes;
o Whether EPA can properly list radiation sites that are regulated
by Agreement states, but not list sites that are
regulated by the Nuclear Regulatory Commission; and
o Challenges that relate to the accurate documentation of
conditions at a site.
The decisions resulting from the litigation over sites will affect not only
the process for selecting priority sites, but could potentially affect the
timeliness of responses at sites.
Major Accomplishments of Site Discovery and Investigation
The Superfund program has a nunber of accomplishtients in site discovery
and investigation. As of September 30, 1984, major accomplishments inclirie:
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o The probable discovery of the more serious hazardous
substance sites and releases in the country;
o Establishment of the Emergency and Remedial Response
Information System as a storaae and retrieval system
available to EPA headquarters, the reqions, the states
and the public;
o Completion of over 10,700 preliminary assessments;
o Completion of approximately 3,600 site inspections;
o Scorinq of 1,732 hazardous waste sites;
o Listing of 410 sites on the final National Priorities
List in September 1983;
o Continued expansion of the National Priorities List,
with 133 sites proposed for listinq in September 1983
and 128 sites added to the Final List in September 19B4.
o Proposal of the second update to the List with 244 sites
in October 1984.
These accomplishments illustrate a major trend with respect to this
initial phase of activities — the continued increase in EPA's knowledge of
the extent and nature of the problems at hazardous waste sites nationwide.
This trend has characterized the Superfund program since its inception and
continues to do so more than three years later. Althouqh no comprehensive
site discovery program is underway, the current inventory of sites discovered
(18,900) is expected to continue). Notifications from Federal, State, and
community hotlines, and aerial photography continue to contribute to the
site discovery inventory. Random discoveries by EPA's Remedial Planning
and Field Investigation Team contractor and State agencies are other sources
for identifying potential hazardous release sites.
Future accomplishments in site discovery will depend not only on
the states' voluntary level of activity, but also on EPA's policy regarding
an aggressive discovery program. For example, if EPA undertakes an active
review of municipal landfills or of certain types of facilities under the
Resource Conservation and Recovery Act, site discoveries may increase
significantly.
Although the effects of EPA's shifts in emphasis on the performance of
site discovery and investigation are not yet fully known, some observations
relevant to future program accomplishments can be made. First, EPA assumes
that; more preliminary assessments will be conducted because an increased
emij>l|asis has been placed on these activities, and the States have been
resources and the authority to conduct them.
EPA's decision to have States conduct site discovery and investigation
activities may affect the consistency with which sites are categorized. No
formal criteria have been developed for placing sites as "no further action,"
"pending, " or as needing additional assessment. There was less of a need for
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such criteria when EPA or its contractors made these determinations. However,
now that each State is placing sites within these categories, there may be a
greater need to ensure consistency in how sites are identified.
REDUCING IMMEDIATE HAZARDS
In the course of investigating sites to determine the need for federally
financed cleanup, EPA and the States also attempt to identify sites presenting
an immediate hazard that must be addressed quickly. For example, a site
may score below the 28.5 cutoff and therefore be ineligible for remedial
action. However, the site may pose an immediate threat that requires some
short-term action. For sites that score above 28.5, there may be conditions
at the site which pose an immediate threat and cannot wait for the more
lengthy processes of remedial planning or enforcement action.
EPA or the State may identify a situation that presents an immediate or
imminent hazard during a preliminary assessment or site inspection. Also,
EPA or the State may determine that there is an immediate hazard after
scoring the site under the Hazard Ranking System. The ranking system
contains two variables for "fire and explosion" and "direct contact" primarily
for the purpose of "flagging" ranked sites that represent immediate or
imminent hazards, to ensure that such sites receive expedited attention.
There are two types of actions that may be taken to reduce or mitigate
immediate hazards at ranked sites. The first of these actions, an immediate
or planned removal ,*? may be taken in response to a release notification or
the identification of an imminent threat through the site investigation
process. Immediate removals may also be initiated at sites on the National
Priorities List. In fact, many of EPA's removal actions are undertaken at
sites that are identified through the discovery and investigation process.
The second type of action is an initial remedial measure and may be
taken only at sites on the National Priorities List. Initial remedial
measures are actions that can be taken quickly to limit exposure or the
threat of exposure to a significant health or environmental hazard at
ranked sites where planning for remedial actions is underway. The category
of activity was created by the 1982 revisions to the National Contingency
Plan. According to the NCP, criteria for determining whether an initial
remedial measure is appropriate are the following:^
(1) Actual or potential direct contact with hazardous
substances by a nearby population;
See Chapter 2 for a full description of removal actions.
National Oil'and Hazardous Substances Contingency Plan, Office of
Emergency and Remedial Response, U.S. EPA 47 FR 31216 (See 40 CFR Section
300.68(e)) (July 16, 1982}
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(?.) absence of an effective drainage control system;
(3) Contaminated drinking water at the tap;
(4) Hazardous substances in drums, barrels, tanks, or other
bulk storage containers, that are known to pose a
serious threat to public health or the environment;
(5) Highly contaminated soils largely at or near the surface,
posing a serious threat to public health or the
environment;
(6) Serious threat of fire or explosion; or
(7) Vfeather conditions that may cause substances to migrate
and pose a serious threat to public health or the
environment.
Originally, in addition bo addressing imminent hazards, EPA's intention
was to use initial remedial measures as a mechanism to take relatively
simple measures at a si be while the complex, long-tern) remedial planning
process was underway. These were measures that could be easily identified,
where there were few or no alternatives, and which were relatively low
.cost. The procedures for initiating an initial remedial measure are similar
to, but shorter than, those for conducting a full-scale remedial investigation
and feasibility study (described in the next section) .
After a site is listed on the National Priorities List, the lead
agency (EPA or the State) conducts an initial scoping of available information
to determine the type or types of remedial response that may be needed for
the site. Based on this scoping, the lead agency may determine that an
initial measure is feasible and necessary to limit exposure or threat of
exposure to a significant health or environmental hazard. In addition,
the lead agency assesses whether the measures are consistent with the
long-term remedy proposed for the site, and if such measures are cost-
effective .
("Vice the lead agency determines that an initial remedial measure is
appropriate, the lead agency undertakes a nunber of preliminary steps for
planning and securing approval of the proposed action. Initial remedial
measures generally involve actions of two types:
o Simple actions such as fencing, drum sealing, or
controlling run-off from the site, that may be completed
in a relatively short period of time. To ensure that
the proposed action is consistent with a permanent
remedy, a limited evaluation of the cost-effectiveness
of the proposed action must be made. In addition,
either a public meeting cr a two-week public comment
period on the planned action must be held.
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o More ccreplex actions such as off-site transport of
wastes, storage of drums or substances not in con-
tainers, or supplyina temporary water supplies. Such
actions may be components of the overall remedial action,
but for which field work can be expedited. These require
a more extensive planning and approval process than
simple actions, as well as a public meeting and two-week
comnent period on the planned action.
Acccnplishments
Until the spring of 1983, FPA'S policy was to undertake removal actions
only in the most urgent situations — situations of immediate and significant
harm that reguired rapid response {see Chapter 2). Since then, EPA has expanded
its initial interpretation of NCP criteria for taking a Fund-financed removal
action, allowing EPA to address potential hazards as well as existing
threats. This has significantly expanded the Agency's actions at sites not
on the National Priorities List which may pose an inrnediate and significant
risk of harm. EPA took 9 removal actions at sites not on the List in
FY81, and at 18 sites not on the List in FY82. Tn FV83, the number went up
to 67 removals at sites not on the National Priorities List. In FYR4,
the number of removals started by EPA at sites not on the National Priorities
List was 148. This is an important increase in activity, since removal
actions are the primary mechanism for addressing sites not on the NPL.
The U.S. Ooast Guard started 37 removal actions at non-WPL sites through
the end of FVfi4« ia of these were started in FV84 alone.
At NPL sites, EPA has undertaken both removal actions and initial
remedial measures. Until the spring of 1983, most removal actions at
Priorities List sites were limited to small scale stabilizations to reduce
only the most immediate hazards. Altogether, EPA has initiated 142 removal
actions at NPL sites, as of September 30, 1984. The U.S Ooast Guard has
initiated a removal at one additional NPL site, since the spring of 1983,
the scope of removal actions at NPL sites was broadened to encourage more
extensive surface cleanups.
At the same time, initial remedial measures have been undertaken at 39
sites through FY84. There have been relatively few initial remedial
measures because there is little distinction between the type of on-site
activities conducted for initial remedial measures and removal actions.
The criteria established in the National Contingency Plan for determinina
whether to conduct an initial remedial measure are essentially the same as
the criteria for determining the need for removal actions. However, E^A
policies and guidance have reguired substantially more documentation for
initial remedial measures to ensure conpliance with the cost-effectiveness
reguirements of the NCP and to enable EPA to demonstrate, for cost-recovery
purposes, that initial actions are consistent with the NCP. Because of
the additional administrative requirements, initial remedial measures are
more time consuming to conduct than removals.
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Initial remedial measures have had only limited success as a mechanism
to take expedited action at NPI, sites. However, removal actions are becoming
an increasingly important and effective mechanism to provide guick response
to immediate hazards at both NPL and non-NPL sites. They are particularly
important as a means of response at lower priority sites which have a small
but serious, or potentially serious, hazardous substance problem. In up-
coming revisions to the National Contingency Plan, EPA is considering
introducing the concept of "operable units" into the remedial planning and
implementation process. This would a'llow a phased approach to remedial
action to replace initial remedial measures.
UNDERSTANDING- THE PROBLEM AND SELECTING CLEANUP ACTION
For all sites on the' rational Priorities List, a detailed study and
evaluation must be conducted fco determine how to clean up the site. This
involves several stages of activity* first, management planning to initiate
activities at the site; then conducting a remedial investigation and feasibility
study; and finally, selecting the appropriate cleanup action. Initial
remedial measures or a removal atetion may be conducted at the site while
these remedial planning activities are under way. Exhibit 1-4 illustrates
these activities.
Initial Planning Activities
Once sites are listed on the National Priorities List, a number of
factors determine when EPA will initiate remedial activities at a given site.
These include: the likelihood of securing responsible party cleanup through
enforcement action; the staters priorities and resources for undertaking
action at sites; and management of Superfund resources among the sites
awaiting action.
To ensure that resources are available and allocated effectively, the
EPA regions and States coordinate in scheduling and planning remedial
activities. A comprehensive management plan provides a long range timetable
for Superfund activities at ea'ch site. In addition, at the beginning of
each guarter and fiscal year, :EPA Regions submit a plan that identifies
activities to be conducted -a!t 'various sites in the Region and their cost
during the time period covered i'n the plan. This Accomplishment Plan is
the official mechanism for r$PA :o i'deHti'f y demands on the Trust Fund for
Superfund activities. It indicates expected expenditures for removal and
remedial actions, enforcement, community relations, contract laboratories,
and other program components. The Assistant Administrator must approve the
Accomplishment Plan before the regions may obligate funds.
After a site is scheduled for nanedial planning, the regional community
relations coordinator or a state'dffieial prepares a community relations
plan prior to the start of the remedial investigation. This plan, prepared
by the lead agency for the site, specifies communications activities to be
conducted at the site to keep the community informed of site activities and
to incorporate community concerns in the remedial plans for the site. In
preparing the community relations plan, Regional and State community relations
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staff participate in community discussions with citizens and officials
affected by the site to assess their concerns about the site. The community
relations activities must be tailored to the specific concerns of the
community and must be closely inteqrated with the technical schedule for
the site.
The proposed activities must also go throuejh intergovernmental review
prior to starting the remedial investigation. The procedures for this review
are specified in 40 CFR Part 29, and include notifying the State and local
governments and other affected entities of a proposed remedial project.
After notification, a 60-day Garment period is provided on the proposed
project.9
Hie EPA and State responsibilities for conducting a remedial
investigation and feasibility study at a site are specified in a cooperative
agreement or State letter of reguest, depending on whether the State or EPA
is the lead agency. These agreements are negotiated between the Regions
and States as part of site planning activities.!0
Conducting a Remedial Investigation and Feasibility Study
A remedial investigation involves a series of detailed studies of a
site to characterize the site and identify the source and extent of contami-
nation. In particular, these studies provide data in sufficient detail to
develop and evaluate alternatives for cleaning up the site. For EPA-.lead
sites, site work is conducted by the Remedial Planning and Field investigation
Team contractor, under EPA's supervision. For State-lead sites, site work
is conducted or managed by the State agency. EPA assigns a State project
officer to oversee any contractor work at a State-lead site.
The scope of a remedial investigation is determined in part by existing
information on the site. The study may include aerial photography and
mapping of the geology, geography, and hydrology of the site. Other tech-
nigues that may be used to study the site include sampling, monitoring,
tests to determine permeability of the soil, etc. Samples collected during
the remedial investigation are sent to an approved laboratory for analysis.
As additional data are collected and analyzed, studies of the site become
progressively more focused on identifying possible methods for cleaning up
the site. For example, if heavy eguip^ent is expected to be used during
clean up, tests will be conducted to determine where to locate the eguipment
or where to construct roads so that the stability of the site is not dis-
turbed.
9 "State Participation in the Superfund Remedial Program," Office of
Emergency and Remedial Response, n.s. EPA (February 1984), Appendix n —
Procedures for Implementing Intergovernmental Review.
in por further information on remedial planning agreements, see "State
Participation in the Superfund Remedial Program," Office of Emergency and
Remedial Response, U.S. EPA (February 1984).
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Rased on the results of the remedial investination, the contractor or
State agency develops specific alternatives for cleaning up the site. Tt»e
remedial investigation and feasibility study report prepared during this
stage summarizes the findings of the site study, the alternatives developed
and evaluated, and the basis for eliminating some of the alternatives. The
National Contingency Plan establishes the following steps conducted during
the feasibility study:
1. Develop Alternatives. The contractor or State agency
develops a limited number of alternatives either for
source control (controlling the source of contamination
at or near the area where the hazardous substances were
originally located), or off-site remedial actions
(actions necessary in cases where hazardous substances
have migrated from the area of their original
location). The alternatives nay include a no-action
alternative, when a response action would cause a
greater environmental or health danger or where, after
detailed analysis, the lead aqency concludes that the
site does not present a potential danger to public
health or welfare or the environment.
2. Initial Screen. The contractor or State agency conducts
an initial screening of each of the alternatives
developed for the site. Three broad criteria are used
in the initial screening process:
— Costs, including the costs of installing or
implementing the alternatives and the costs of
operating and maintaining the site.
— Effects of the alternative, including any adverse
environmental effects and whether the alternatives
will adequately control the contamination and
effectively mitigate and minimize the threat to
public health or welfare or the environment.
— Acceptable engineering practices, including those
practices that are feasible, applicable to the
problem, and represent a reliable means of
addressing the problem.
3. Detailed Analysis. After the initial screening, the
contractor or State agency analyzes in detail the
alternatives that pass the initial screening.
This detailed analysis includes:
— Rsfinement and detailed specification of
alternatives, with emphasis on the use of
established technology;
— Detailed cost estimation, including distribution of
costs over time;
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1-22
— Evaluation of enqineerinq implementation, or
construetability;
— Assessment of each alternative's ability to mitigate
effectively and minimize damage to, and provide
adequate protection of, public health and welfare
and the environment, relative to the other
alternatives analyzed; and
— Analysis of any adverse environmental impacts,
methods for mitigating these impacts, and costs of
mitigation.
On the basis of this detailed analysis, the remedial alternative or
combination of alternatives determined to be most cost-effective is
recommended for implementation. Examples of cleanup actions analyzed
during a feasibility study include groundwater treatment, placing a cap on
the site to reduce migration of contaminants, or excavating leaking drums
and tanks and/or contaminated soil and removing them from the site.
Throughout the remedial investigation and feasibility study, the
Regional or State project officer is responsible for monitoring activities
at the site and helping community relations officials to conduct activities
as specified in the community relations plan. Community relations activities
are conducted to ensure that the response agency informs affected citizens
of site activities and elicits their input and concerns. Oomjnunity relations
activities conducted for a site include preparing fact sheets and/or progress
reports, establishing a location where all technical documents and infor-
mation are available to the public, holding small group meetings, workshops,
public hearings, and other activities.
Selecting the Remedy
The process for selecting the appropriate remedy for a site beqins with
the completion of the draft remedial investigation and feasibility study
report. The draft report is reviewed by State, EPA Regional, and Head-
quarters staff, and other Federal agencies, if appropriate. For all sites,
a minimum three-week public comment period is provided to review the remedial
investigation and feasibility study. A community relations responsiveness
summary is prepared following the comment period. The responsiveness summary
describes the comments received and how FJPA or the State considered the
comments prior to selecting the cleanup option.
After review and public comment on the remedial investigation and
feasibility study report, Regional and State staff prepare a draft decision
document for either Ftmd-financed or responsible party remedial actions.H
"Fbr further discussion of the process for developing and approving a
record of decision, see "Preparation of Decision Documents For Approving Fund
Financed and Responsible Party Remedial Actions," Memorandum from Lee Thomas,
Assistant Administrator for the Office of Solid Waste and Emergency Response.
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1-23
Fund-Financed Remedial Actions; The draft Record of Decision and
supnortina documents, summarize the alternatives that were evaluated in the
detailed analysis conducted during the feasibility study. The primary purpose
of the decision document and supporting information is to document the
decision process and denwnstrate that the remedial action is consistent
with CEPCLA and the National Contingency Plan. The typical areas discussed
in the Record of Decision or supporting information include:
o Consistency with the National Contingency Plan sections
330.68(g) through (i) for developing, screening, and
evaluating alternatives.
o Documentation that a no-action alternative was evaluated
and the reasons for eliminating the no-action
alternative.
o Extent of remedy, including comparison with any EPA
standards or criteria, or other environmental laws or
regulations, or other approach used to establish level
of cleanup.
o Cost estimates for all final alternatives evaluated in
the feasibility study including remedial action cost,
annual operation and maintenance cost, and total present
worth.
o Evaluation of the cost-effectiveness of the alternatives
according to the factors in the National Contingency
Plan sections 300.6fl(h) and (i).
o Documentation that the reguirements of CEPCLA section
101(24) have been met for any recommended remedy
involving off-site transport, storage, destruction, or
disposal of hazardous wastes. The section 101(24)
requirements specify that the remedial action, or
component involving off-site transport, storage, disposal,
etc. activities, must be shown to be more cost-effective
than other remedial actions, will create new capacity to
manage hazardous substances in addition to those at the
facility, or is necessary to protect public health or
welfare or environment from a present or potential risk.
o The responsiveness summary details the concerns of the
community and potential responsible party(ies) and how
EPA or the state responded.
o Description of future operation and maintenance
activities needed for the site and how the state expects
to fund and conduct activities.
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1-24
The Record of Decision package prepared by the Region and State is
submitted to EPA Headguarters for review. The EPA headguarters process for
review.and approval of the package ensures that all appropriate offices are
involved. For instance, EPA's Office of General Counsel reviews each
document to ensure compliance with statutory reguirements.
Based on comments from the reviews, revisions to the Record of Decision
are made if needed, and concurrences are obtained. The final step in the
process is to brief the Assistant Administrator for the Office of Solid Waste
and Bnergency Response, and obtain his approval of the recommended action.
Responsible Party Petnedial Actions; The process for selecting the
cleanup action at enforcement-lead sites is similar to the process for
Fund-financed remedial actions. At the completion of the feasibility
study, and following a public comment period, a Negotiation Decision Document
is prepared by the EPA Region in coordination with EPA Headguarters and the
affected State. This document identifies the alternative recommended by
the Region and State to be used as a basis for negotiating with potentially
responsible parties. The criteria established in the National Contingency
Plan for screening alternatives must be met and the alternative must
adeguately protect public health" and the environment. Cnce approved by the
Assistant Administrator, EPA uses the Negotiation Decision Document in
negotiating with potentially responsible parties.
When negotiations are successfully concluded, an Enforcement Decision
Document is prepared for the site. This document serves as the Record of
Decision for selecting the remedy and documents EPA's concurrence with the
terms of the settlement with private parties. The Enforcement Decision
Document is a public document and is available for public review and comment.
Goals and Related Policies of Remedial Investigation and Feasibility Study
The goals of the remedial investigation and feasibility study stage
are to:
o Characterize the source and extent of contamination and
the geography, geology, and hydrology of the site.
o Identify alternative cleanup measures, their
reliability, effectiveness at cleaning up the site, and
associated impacts and cost.
o Select an alternative that provides adeguate cleanup and
is cost-effective.
o Ensure state involvement and consultation in remedial
alternatives.
o Ensure community involvement in remedial planning to
address the needs and concerns of the affected public
and to meet National Environmental Policy Act functional
eguivalency reguirements.
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These goals have remained relatively constant throughout the history of the
Super fund program. However, relevant EPA policies and guidance have changed
during the first three and a half years of the program, and these changes have
affected the way and extent to which these goals have been met. The following
sections discuss the specific policies related to the implementation of
remedial investigation and feasibility studies.
State Participation; The National Contingency Plan encourages State
participation in response actions. Section 300.62, which outlines the
specific reguirements for State participation, is intended to encouraoe
States to undertake response action. The reguirements are as follows:
o EPA will provide assistance to the States pursuant to a
cooperative agreement or contract authorizing States to
undertake most actions specified in the National
Contingency
o States must enter a cooperative agreement or. contract
with the Federal Government before any Fund-f inanced
action can be unQeiftakeft'i The cooperative agreement or
contract must include CKe' statutory assurances
established in section lf)4(c) for State cost-sharing for
remedial actions, including State financing of their
share of remedial planning costs, providing for the
costs of operation andt maintenance of the site, and
providing a facility for the off-site treatment or
disposal of hazardous substances if necessary.
o EPA will consult with the affected State before
determining the appropriate remedial action.
In the spring of 191*3, EPA instituted a major shift in emphasis in the
Superfund program to speed' up flund-f inanced remedial action. As of April
19R3, only 66 remedial investigation/feasibility studies had been initiated.
From EPA's experience, a major cause for delay was the reguirement that States
pay for 10 percent of remedial planning costs, and provide their statutory
assurances at the outset of the remedial planning effort. Many States
encountered administrative and financial constraints in meeting this
reguirement.
In May 1983,- EPA implemented policy changes to expedite remedial planning
activities. These werer
o State cost-share for remedial planning. FPA waived the
regulatory reguirement for cost-sharing for remedial
planning activities (including remedial investigation,
feasibility study and remedial design activities) at
privately-owned sites (40 CPR 30.720(a)).
o Timing of assurances. The statutory assurances for
state cost-sharing, off-site facilities, and operation
and maintenance costs, are not finalized until
immediately prior to the initiation of remedial
construction. Ifcraft operation and maintenance plans,
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Community Involvement! The National Contingency Plan also states that
response personnel should, to the extent practicable, "be sensitive to
local cormnunity concerns (in accordance with applicable guidance)."12
EPA understands the need to be sensitive to community concerns at hazardous
waste sites throuqhout the Superfund response process. However, EPA has been
developing more effective approaches to ensure community involvement as the
Aqency gains experience with the program. Early experience with hazardous
waste sites indicated that the success of the Superfund program depended on
EPA or the state developing and implementing an effective community relations
program. However, for such a program to be effective, the reguirements
must be flexible enough to meet the community concerns and issues at each
site. As a result, EPA did not consider it appropriate to issue strict
reguirements for community relations at Superfund sites. Instead, the Agency
issued a policy memorandum in November 1981 that specified flexible program
reguirements.13
In November 198?, EPA initiated a review of the effectiveness of the
community relations program. The findings of the review indicated that the
community relations program was not being implemented consistently in each
Region. The few community relations plans that were prepared generally did
not adeguately reflect site-specific community concerns and needs.
As a result of these findings, EPA issued a community relations policy in
May 19R3 and published CCnmunity Pelations in Superfund; A Handbook,
Interim version, September 1983. EPA policy is intended to ensure that: fl)
communication is established and maintained between EPA and state officials
and the community; (2) communities are kept informed of site activities; and
(3) community concerns are incorporated in the remedial plans developed for
the site. The May 1983, Community Pelations Policy established the following
reguirements for community relations during remedial planning activities:
o A community relations plan covering the remedial
investigation and feasibility study must be prepared
prior to the initiation of the remedial investigation.
The plan must he based on discussions with the local
officials and citizens of their concerns about the
site. A revised plan must also be in place for the
remedial design and construction phase.
o A three-week public comment period must be provided on
the feasibility study. (This also ensures "functional
eguivalencv" with the public participation reguirements
of the National Environmental RxLicy Act.)
12 National Oil and Hazardous Substances Contingency Plan, U.S. EPA
47 FP 31?/4, (July 16, 19«2) (See in CFR Section 300.fi!).
13 "Superfund Community Pelations Policy and Guidance," Office of
Emergency and Pemedial Response, TJ.S. EPA (November 18, 1981).
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1-27
o A community relations responsiveness summary must he
submitted with the draft record of decision. The
summary should describe the comments received and how
EPA or the State responded.
In addition to the policy and guidance, EPA has recently initiated a
community relations trainina workshop to be conducted in every region by
October l^R^. The trainina proaram is designed to provide EPA and state
technical, enforcement, and community relations staffs with additional
ouidance on how to implement an effective community relations program.
Delegation of Authority to the Fegions: EPA recoqnized that the
Aciency's Headquarters approval process could cause delays in the proaress
of remedial actions as the number of remedial investiqations and feasibility
studies increased. Tn the sprinq of 1Q84, EPA delegated authority to the
Regions for negotiating and siqninq cooperative aqreements and State Super-
fund contracts. Tn addition, authority for initiating and conducting
remedial investigation, feasibility study, and remedial design activities
was delegated to the Regions. Previously, such activities reguired approval
by the Assistant Administrator for the Office of Solid Waste and F)nergency
Response.
Major Accomplishments;
In the first two and a half years of the Superfund program, progress
in responding to uncontrolled hazardous waste sites was was affected by a
number of policy issues. However, progress has speeded up considerably in
the last 2 years. Exhibit 1-5 presents past and projected annual numbers of
remedial investigation and feasibility studies. These annual numbers are
also broken down into the following categories:
0 PI/FS actions financed by the Fund at Fund-lead sites;
0 PI/FS actions financed by the Fund at enforcement lead sites; and
0 RI/FS actions undertaken by responsible parties.
As illustrated in Exhibit 1-5, 315 remedial investigation and feasibility
studies have been initiated as of September 30, 1984, of which over «2
percent have been initiated since the start of FYS3. The number of remedial
investigations/feasibility studies that are under way is a predictor of the
increased design and construction activity that will occur in FY 1985, and
in upcoming years.
Cleanup T>ecisions; Exhibit 1-R located at the end of this chapter,
presents information on some of the cleanup alternatives that have been
approved for Superfund sites. A sample of 2fi records of decision were
reviewed for this analysis. This exhibit lists each of the decision documents
and provides a brief description of the site problems, previous actions
taken, the remedial alternative recommended for the site, and the estimated
cost of the recommended alternative. In addition, analysis of this sample
reveals that:
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0 In almost every case, the remedial alternative included
source control measures. At six sites, off-site
remedial action was included with source control
measures, and at one site, an off-site action alone was
recommended.
0 The primary types of responses taken at the 26 sites were
removal and off-site disposal of wastes, treatment of qround
water, provision of alternative water supplies, capping
contaminated areas, and construction of trenches.
0 EPA is required to choose a cost-effective remedy.
In 11 of the 19 cases in which cost ranoes for final
alternatives were summarized, the least-cost alternative
was also the most cost-effective, itie most costly alternative
under consideration was the most cost-effective in 4 of these 19
Records of Decision.
0 Several decision documents cited public comments in
modifying the selected alternative. Seven documents
explicitly stated that the public endorsed the remedial
alternative selected.
0 At approximately 60 percent of the sites reviewed,
previous actions were taken at the site. These
actions include fencing the site, removing surface
debris, and providing temporary drinking water supplies.
In addition, in 11 of the 2P Records of Decision,
the approved alternative was an initial remedial measure
or an interim phase .of cleanup. Thirteen of the approved
alternatives involve final cleanup measures.
0 Three of the records of decision cited regulatory standards
or recommended concentration levels for contaminants to
support the chosen remedy. One document referred to a Centers
for Disease Control judgement concerning polychlorinated
biphenyl levels to justify the selection of an alternative.
Environmental concentrations and other Quantitative factors were
comnonly cited to identify the desired level of cleanup, as well
as to characterize the environmental problem.
These findings indicate that there are a number of issues that have
affected cleanup decisions, and that EPA is currently working to resolve.
EPA recognizes that identifying and selecting the cleanup action has
been affected by the lack of adequate guidance on determining the appropriate
extent of remedy. The National Contingency Plan criteria for selecting the
appropriate extent of remedy were designed to allow EPA flexibility in
selecting remedies to accommodate conditions at individual sites. However,
this lack of guidance may have resulted in the Regions and States placing
more emphasis on the components of the criteria that are easiest to evaluate:
technical feasibility, reliability, and cost. .Several areas of concern are
briefly discussed under "Outstanding Issues" below.
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Encouraging Community Involvement; Over the past year, compliance with
the community relations requirements has noticeably improved. Every reqion
has at least one designated Ruperfund community relations coordinator and
community relations plans are now developed for many remedial investinations/
feasibility studies. In addition, more of the plans are based on discussions
with affected citizens and public officials. Public coment periods are
now routinely provided on the feasibility study.
There are still some problems with the proqram. Coordination between
technical and community relations activities for a site needs improvement.
However, some EPA Reqions have instituted a team approach, reguirirta the
community relations and technical staff to work closely together in planning
activities for the site. Some regions lack adequate resources to conduct
active community relations for every site. In addition, some regions do not
maintain adequate oversiqht when a State has the lead responsibility for
community relations.
Outstanding Issues
There are still several outstanding issues that affect the decision-making
process for choosinq cleanup alternatives. Vhile EPA has made progress in
resolving some of these issues, they continue to have an impact on both the
timeliness and the outcome of decision-snaking. Some of these issues are
discussed below.
The Extent of Cleanup;
RPA is finalizing a policy to reouire compliance with "applicable or
relevant" environmental and public health standards in CEPCLA remedial
actions unless certain specific circumstances exist, and to document all
analyses of these circumstances. Other regulations, advisories, and ouidance
may be considered in developing CERCIA remedies. This policy should assist
decision-leaking on the extent of cleanup, necisions on the appropriate
level of cleanup at remedial sites have been made on a site-by-site basis.
Capacity of RCRA Facilities; There is a concern about the extent to
which fully permitted treatment, storage and disposal facilities will he
available to dispose of Superfund wastes from remedial or removal actions.
EPA's experience over the past several years has shown that many of. the
facilities that have interim status under the Resource Conservation
and Recovery Act are in violation of reguirements for such facilities, and
therefore may be unacceptable for storage, treatment or disposal of
Superfund wastes.
Tn order to prevent future problems resultina from disposal of .Superfund
wastes, EPA reguires recent inspection of disposal facilities. In addition,
EPA is considering a requirement for use of lined land disposal units for
Superfund waste arid establishing a preference for use of treatment over
land disposal. This may limit the number of facilities which are immediately
available to accept Superfund waste.
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1-30
In addition, while there are many new and existing facilities scheduled
for review to receive a final permit, many of these facilities are likely
to be unable to receive final RCPA permits until the facilities take addi-
tional action to meet regulatory reouirements. Because of these problems,
it is possible that there may be inadeouate treatment and disposal capacity
under RCfA to meet Superfund needs. The Agency is assessing this problem
further.
There are also serious concerns with the lonq-term impacts of continuinq
land disposal of hazardous substances. The Agency's ability to shift to
treatment alternatives depends on the availability of proven treatment
technoloqies.
Alternative Technologies: The rate at which the Federal and State.
governments and private industry can develop and test more advanced
treatment, recycling, and destruction technologies also affects available
waste disposal capacity. The range of technoloqies that are used most
frequently at Superfund sites generally do not focus on advanced treatment,
recycling or destruction. Nbst of the technoloqies that are used fit into
the following general categories:
—treatment technoloqies, such as activated carbon units. However,
many of these still require destruction of highly concentrated/low volume
wastes that result from the treatment process. For example, expended
activated carbon requires regeneration or the removal and further handling or
disposal of residual substances.
—containment technologies, such as slurry walls, caps and barrier wells.
The program is gaining experience with these technologies, however, there
are tws important factors that affect their long term effectiveness.
Most of these reguire long term maintenance to ensure adequate containment
of hazardous wastes. Also the long term effects of hazardous substances
on the materials used in containment structures are unclear and are being
carefully evaluated.
—Storage technologies, such as covered waste piles are used generally
as interim remedies until a more permanent remedy can be implemented.
—restriction technologies, such as incineration, are very effective.
However, their application has been limited principally to liquids and sludges.
—In situ stabilization, such as solidification or neutralization are
effective. Generally, this treatment is only applicable to certain waste types.
In summary, there is still a qreat need for technoloqies that will result
in handlinq the wastes only once, without long term operation and maintenance
requirements, and without the need to revisit a potential threat of release
in the future. An additional problem related to these long term needs
is that CERCfA's cost-effectiveness requirement was often interpreted as a
disincentive for the use of newer, more costly treatment or destruction
technoloqies. However, EPA is clarifyinq the interpretation of cost-
effectiveness so that alternative technoloqies may be chosen when they
provide additional protection of human health and welfare and the environment.
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1-31
REMEDIAL DESIfW AND CONSTRrOTON
After a site has been investinatert and evaluated and a method of cleanup
has been selected, the recommended cleanup is initiated. This phase is
usually referred to as remedial desiqn and construction.
The activities that take place during this phase are similar in concept
to those that occur in any larqe desiqn and construction project. Detailed
enqineering plans are developed, site specifications are calculated, and
site-specific factors are incorporated in the planned desiqn. Construction
activities may include drillinq, installation of supports and foundations,
and earth moving.
In most cases, the actual desiqn and construction are carried out by
contractors. However, EPA or the State continues to have primary responsi-
bility for monitoring the activities. For FPA lead sites, day-to-day
supervision of site activities is handled by the Army Corps of Engineers.
The activity must still be defined in a State Superfund contract or a
cooperative agreement, which now contains the State assurances required in
CKRCLA section 104(c){3) for cost sharing, operation and maintenance costs,
and off-site treatment of hazardous substances.
Prior to the initiation of remedial desiqn activities, the Regional
Superfund community relations coordinator or State official must revise the
community relations plan for the site. This revised plan must account for
the changing needs and concerns of the community related to the selected
cleanup option.
After the contract or cooperative agreement is final, a design contract
is procured. At federal-lead sites, regional staff oversee the Army Corps
of Engineers, who advertises'and awards a contract for desiqn. The Corps
ensures that all bidders are "responsive and responsible." Both EPA and
the Corps review the design at various stages of completion. TTpon completion,
the Corps advertises and awards a construction contract and manages its
implementation. This includes providing on-site Corps engineering services,
implementing a safety plan, and ensuring that the remedial action is com-
pleted in accordance with the plans and specifications. Monthly progress
reports are submitted by the construction contractor to the EPA Regional
Office for evaluation.
At State-lead sites, the State either retains the contractor that
conducted the remedial investigation and feasibility study, or procures a
new design firm. The State's tasks are similar to those of the Corps of
Engineers in a Federal-lead action.
In addition to monitoring site progress at Federal-lead sites, EPA's
primary responsibilities are to (1) work with the State to obtain access to
the site and any necessary local or State permits, (2) maintain community
relations activities as specified in the revised community relations plan,
and (3) proceed with enforcement activities if there is an opportunity for
cost recovery or responsible party action. There may also be situations
where EPA works with other Federal agencies such as the Centers for Disease
Control or the Federal Siergency Management Agency during design and con-
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1-3?
struction. In such cases, a memorandum of understandino or interaqency
aqreement may he necessary to specify the scope of the project and detail
each aqency's responsibilities.
At State-lead sites, the EPA Reoional office's role is to monitor
compliance with the cooperative agreement. EPA's TReqional proiect officer
reviews all major decisons concerninq desiqn specifications. The Regional
proiect officer, in conjunction with the State project officer, addresses
how desiqn and construction decisions affect future cooperative aqreement
terms, and obtains necessary Regional approvals for the amendments. At
State-lead sites, the State aqency is responsible for conductinq community
relations activities as specified in the revised community relations plan.
EPA's current budget estimates for a remedial planninq, desiqn and
construction project are, an averaqe, $SOO,000 for the PI/FS, $440,000 for
remedial desiqn, $7.2 million for construction, and $400,000 per year for
operation and maintenance. The Fund-financed portion of this cost is $a.l
million. However, as experience with this phase of activity increases, and
as policies on the extent of cleanup are clarified, it is likely that the
estimated average cost for construction may increase siqnificantly.
Goals and Related Policies of Design and Construction
The qoal of the remedial desiqn and construction staqe is to desiqn
and implement a reliable and effective remedial alternative in the most
cost-effective manner (i.e., minimize cost overruns and delays). This qoal
has remained constant throughout the Superfund program. One recent program
change that directly affects desiqn and construction gives States the
option of usinq the contractor that conducted the remedial investiqation
and feasibility study for desiqn and construction, without additional
procurement .requirements. Prior to November 19R3, separate procurement of
desiqn services was often required. This change is expected to expedite
desiqn and construction by reducinq the time taken to solicit, review, and
negotiate a new contract.
Since EPA's experience implementing cleanup actions is somewhat limited,
it is too scon to tell if there are specific problems that cause delay during
these phases of remedial action. As the Aqency initiates more remedial
cleanups, we will evaluate the effectiveness of our actions. A major
component of such an evaluation is to determine how well the chosen tech-
nologies work. This is a lonqer-term question which must be considered
after the remedial measures have been in place for some time. In fact,
this will be the "bottom line" in terms of evaluating the effectiveness of
the program.
Major Accomplishments of Desiqn and Construction
As illustrated in Exhibit 1-fi, by September 30, 1984, Fund-financed
remedial design activities had been initiated at 34 sites and remedial
construction had been initiated at 29 sites. The recent increase in the
number of remedial investigations and feasibility studies completed is
expected to result in a considerable increase in the rate of sites entering
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1-33
desiqn and construction, beqinninq in fiscal year 19RS. In addition to
Fund-financed activities, responsible parties have initiated remedial
design and construction at 7.2 sites, as shewn in Exhibit 1-7.
The time required to complete plannina activities has impeded the pace
of remedial desiqn and construction; however, remedial desiqn and construction
have been facilitated by policy chanqes to speed up the planninq process.
Accordingly, tarqets for program accomplishments have been developed
to reflect the ability of EPA and the States to desiqn and construct selected
alternatives at a more rapid rate. Ihe increase in the number of remedial
planninq projects undertaken since May, 19S3 will result in the initiation
of more remedial desiqn and construction projects in the near future. By
fiscal year 1985, EPA staff expect Fund-financed remedial desiqn to be
initiated at 98 sites and Fund-financed remedial construction to be initiated
at 54 sites.
Tn addition to Fund-financed remedial actions, responsible party
activity, resulting from EPA's enforcement mechanisms, have also siqnificantly
contributed to site cleanups. Ttirough FYJU, responsible parties have
committed to remedial action at 22 NPL sites. In FY«5, the Ajency anticipates
that responsible parties will commit to startinq remedial action at an
additional 17 sites. Enforceemnt-lead activities are discussed in greater
detail in Chapter 4 of this report.
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EXHIBIT 1-4
REMEDIAL INVESTIGATION/FEASIBILITY STUDY
ACTIVITIES
Action
Memorandum
ft Community
Relations Plan
Approved
RI/F3
for site
Included
onSCAP
Notify state & local
agencies of expected
prefect. Allow for
80-day comment period.
RA approves
cooperative
agreement or
state letter
of request
finalized
\
Conduct RI/FS site work.
prepare RI/F3 report
-develop alternatives
-Initial screen
-detailed analysis
•;
Review of
draft RI/FS
report by
region,
state ft
HO staff
••
\
Provide 2
wk. public
comment period.
Prepare respon-
siveness
summary.
1
Prepare
decision
document
i submit to
EPA HQ
for
approval
Decision
document
approved
Community relations
activities conducted
as specified In CRP
Intergovernmental
review of F8-
60 day comment
period required
CRP—Community Relations Plan
PS—Feasibility Study
RA—Regional Administrator
Rl—Remedial Investigation
SCAP—Superfund Comprehensive Accomplishment Plan
-------
500-1
NUMBER
OF
SITES
400-
300-
800-
100
EXHIBIT 1-5
SUPERFUND PROGRAM:
REMEDIAL INVESTIGATIONS AND FEASIBILITY STUDIES
465
Total RI/FS
ERCLA-Flnanced
RI/FS Actions
Enforcement-Lead
RI/F3 Actions
26 _.--——
^Responsible Party
RI/FS Actions
FY 81
FY 82
Actual
Projected
FY 83
FY 84
FY 85
Source: Office of Emergency and Remedial
Response, U.S. EPA. (September 30, 1984)
-------
40 -
35 *~
NUMBER
SITES 30 ^
25 -
20 -
15 -
10 -
5 -
EXHIBIT 1-6
SUPERFUND PROGRAM: FUND-FINANCED
REMEDIAL DESIGN AND REMEDIAL CONSTRUCTION ACTIVITIES
10
34 Remedial
,* Design
t
/ 29 Remedial
' Construction
16
FY 81
FY 82
FY 83
FY 84
Remedial Design Activities
Remedial Construction Activities
Source: Office of Emergency and Remedial Response, U.S. EPA (September 30, 1984)
-------
NUMBER
OF SITES
25-n
20-
15H
10-
EXHIBIT 1-7
SUPERFUND PROGRAM: RESPONSIBLE PARTY REMEDIAL
DESIGN AND REMEDIAL CONSTRUCTION ACTIVITIES
11
, Remedial Design
And Remedial
Construction
FY 81
FY 82
FY 83
FY 84
Source: Office of Emergency and Remedial Response, U.S. EPA (September 30, 1984)
-------
2. REMOVAL ACTIVITIES
INTRODUCTION
Removal activities constitute the emergency response portion of the
Superfund proqram. There are three major elements of the removal program.
These are: ensuring that the government is notified of hazardous substance
releases; monitoring non-Pederal cleanup efforts; and conducting short-term
cleanup activities. Through its removal activities, EPA ensures that there is
appropriate response to emergencies involving hazardous substance releaises.
EPA can also use removals to address many releases or potential releases
that pose an immediate hazard but that are not eligible for remedial
cleanup, ttiree sections of CERCLA provide the statutory authority for
most Superfund emergency response activities:
0 Section 102, which authorizes the EPA Administrator
to designate hazardous substances and establish
reportable guantities, and which sets the reportable
guantity for hazardous substances at one pound unless
the Administrator has set a different reportable
guantity or a different reportable guantity was set for
the substance under CWA section 311(b)(4);
0 Section 103, which requires any person in charge of a
vessel or facility to notify the NRC as soon as he or she has
knowledge of a release of a hazardous substance in an amount
eoual to or greater than the reportable guantity of the
substance; and
0 Section 104, which gives the government broad
authority to take any response measure (including
removal and remedial action) consistent with the
NCP that it finds necessary to protect public health or
welfare or the environment from a release or threatened
release of a hazardous substance or a pollutant or contaminant
that may present an imminent and substantial danger. Such
measures may be taken unless it is determined that the owner
or operator of the releasing facility or vessel, or some
other responsible party, will perform the heeded response
properly.
Section 104 places some limits on the extent of a removal action. A
Fund-financed removal may not continue beyond 6 months or $1 million, unless
EPA finds that a continued response is immediately reguired to prevent,
limit, or mitigate any emergency, an immediate risk to public health or
welfare or the environment exists, and an appropriate response will not
otherwise be provided on a timely basis.
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2-2
NOTIFYING THE GOVERNMENT OF HAZARDOUS SUBSTANCE RELEASES
Notification concerning hazardous substance releases and threatened
releases is the first step in the Superfund emergency response process.
Notification is a prerequisite for determining (1) the need for a response,
(2) the adequacy of any cleanup efforts, and (3) the degree to which
post-release monitoring may be required.
EPA learns of releases of hazardous substances in several different
ways: through notifications to the National Response Center pursuant to
CERCLA section 103(a); through direct notifications to the regions;
through government investigations conducted in accordance with CERCLA
sections lf)4(b) or 104(e) or other statutory authorities; through notifi-
cations frcn Federal or State permit holders in accordance with their
permits; through inventory efforts; and through incidental observations,
reports, and referrals from Federal and State agencies, the public, or
other sources.
The National Response Center, operated by the Coast Guard, has 2
24-hour toll-free telephone lines to receive notifications. Notifications
may be made by responsible parties, witnesses, or other parties with
knowledge of a release or potential release. When the Center receives a
call, the duty officer asks for:
0 The name, address, and telephone number of the
reporting individual;
0 The identity, location, and nature of the release,
including its source, cause, guantity, and duration;
0 The identity of the transporter or owner of the
facility or vessel;
0 The nature of iniuries and property damage, if any;
0 A description of any corrective actions taken; and
0 Information concerning other relevant circumstances,
such as weather conditions.
The duty officer enters this information on a computer terminal as it is
received. The officer then forwards the information to the relevant EPA
Regional Office or OSCG district office and to the appropriate agency
of the affected State.
. Individual EPA Regional Offices also receive notifications from
responsible parties and witnesses. In a few Regions, States forward
release reports to the Regional Office. Each Region has its own notifi-
cation hotline, originally established under section 311 of the CWA, to
' receive notifications of x>il and hazardous substance releases. When a
call comes in, the on-scene coordinator or other staff person on duty
will record the relevant information and later transfer it to a logbook
or, in some Regions, to a computer file. After hours calls are relayed
to the on-scene coordinator on duty by a commercial answering service.
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2-3
a Federal on-scene coordinator receives a release report from
anyone other than the responsible party, including reports from the NPC,
the coordinator will attenpt to verify the notification information by
contacting the responsible party or State or local authorities, to verify
release information, On the basis of the information gleaned from
screening the notification, the on-scene coordinator determines whether
further action is warranted, such as a search of Regional files for
additional relevant site information, an on-scene investigation, or
monitoring of the situation by telephone.
Goals and Related Policies of Notification
The goal of notification is to alert the Federal Government to releases
of hazardous substances that may reguire rapid response to protect public
health and welfare and the environment. The purpose of the CEPCIA section
103(a) reguirement that persons in charge inform the NRC of a release is
to ensure that the notification is relayed to the appropriate on-scene
coordinator and to the affected State.
EPA policy as expressed in the NCP is consistent with CERCLA
notification goals. Section 300.fi3(b) of the NCP provides that Tilf not
reported previously, a release should be promptly reported to the NRC,"
and the section also repeats the statutory reguirements. In practice,
however, EPA has placed a low priority on enforcement of the reguirement
that releasers notify the NRC. This lack of emphasis resulted from EPA's
pressing obligations concerning the other elements of the Superfund
program, as well as EPA's belief that even if notifications are not
provided to the NRG, ttaey are generally provided either to the States or
to EPA, thus ensuring an appropriate response.
Since the start of the Superfund program, compliance with the CEPCLA
reguirement that releasers notify the NRC has been relatively limited.
EPA Regional staff estimate that the Center receives notification of only
5-20 percent of all the releases reguired to be reported under CERCLA.1
The remaining 80-95 percent are reported either to EPA Regional Offices,
to States, or to local emergency services (e.g., fire or police departments,
rescue sguads, etc.), or are unreported. For example, 33 States reported
responding to a total of more than 16,000 hazardous substance spills over
the two fiscal years 19fll and 1982. Although many of these state responses
may not have involved CERCLA hazardous substances, the National Response
Center received fewer than 4,000 hazardous substance release reports
over the same two-year period.?
Several reasons exist for the lack of compliance with the statutory
notification reguirement. First, CERCLA section 103(b) penalizes only a
failure to notify "the appropriate agency of the United States Government
. . .," even though the National Response Center is discussed in section
1 Source: Interviews with EPA on-scene coordinators carried out
by EPA's Emergency Response Division during FY84.
2 Association of State and Territorial Solid W&ste Management Officials,
State Cleanup Programs for Hazardous Substance Sites and Spills, Report to
U.S. EPA under Special Agreement X-901453, December 21, 1983.
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2-4
103{a). Thus, releasers may believe that notifying the EPA Peqion or
Coast Guard District Office is sufficient to avoid the statutory penalty.
Reports also frequently fail to reach the National Response Center
or other Federal authorities because the Superfund enforcement program
has provided few incentives for compliance with CERCLA section 103(a) and
-------
2-5
governments have responded effectively to certain hazardous substance
releases. Generally, all States contact EPA Peqional Offices when
necessary responses to releases are beyond their capabilities.
Even without explicit EPA efforts to improve compliance with
notification requirements, reports to the National Response Center pursuant
to CERCLA have steadily increased over time. As Exhibit 2-1 shows,
reports to the Center concerning releases of CERCLA hazardous substances
increased by about 33 percent from pvfil to FY82 and by about 16 percent
from FM82 to FY83. In addition, the National Response Center received
234? reports concerning releases of CEPCLA hazardous substances in FY 84,
as conpared with 2240 reports during FY 83 — a 5 percent increase.4
These increases may be due to a growing number of hazardous substance
releases each year, greater awareness of CERCLA requirements on the part
of responsible parties and the public, or other factors.
The number of reports being made directly to the ten EPA Regions also
has increased substantially over tine. As Exhibit 2-2 shows, the Regions
received a total of more than 3,000 notifications under CERCLA in fiscal
years 1981 and 1982 and more than 5,000 notifications in FY83, including
reports forwarded by the National Response Center, reports forwarded by
-States either individually or in monthly summaries, and some other other
rtuplicative reports.^ Even excluding the reports forwarded to the Regions
by the National Response Center6 and other instances of duplication, the
total number of CEPCLA notifications received by the Regions appears
substantially greater than the number of such notifications received by
the National Response Center.
A major accomplishment with respect to notification will be the
promulgation in PY85 of a final rule adjusting the reportable quantities
of 341 hazardous substances under CEPCLA section 102(a). Of the 341
substances, approximately 50 percent will have their reportable quantities
raised from the levels originally established by CERCEA or under the Clean
Wfeter Act, another nine percent will have their reportable quantities lowered,
and the remainder will retain their original reportable guantities.7 These
reportable quantity adjustments are intended to enable EPA to focus its
resources on the inost serious releases and thereby to protect public health
and welfare and the environment more effectively. Ry reducing the potential
4 Source: National Response Center.
5 These totals are based on figures collected quarterly from the regions
by the Emergency Response Division. Differences in Regional accounting
practices affect the accuracy of the totals.
6 Approximately 75 percent of the CERCLA reports received by the National
Response Center in 1983 were forwarded to the EPA Regions. Source:
National Response Center.
7 Eor example, acetic acid was assigned a reportable guantity of 1000
pounds under the Clean Water Act. The final rule under CERCLA
section 102(a) will raise the reportable quantity of acetic acid
to 50on pounds.
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2-6
EXHIBIT 2-1
NOTIFICATIONS TO THE NATIONAL PPSPONSR CKNTRP POP
RELEASES OF CEPCLA HAZARDOUS SUBSTANCES
FY81 FV82 FY83 FYP4
Hazardous substance
release reports 1450* 1934 2240 2342
Percentaqe increase over N/A 33% Ifi* 5*
previous year
b First quarter of PY81 estimated based on weighted average of
subsequent three months; actual figures unavailable.
Source: National Response Genter.
EXHIBIT 3-2
COMPARISON OF NPrriFICATIOFS TO EPA REGIONS
WITH NOTIFICATIONS TO NATIONAL RESPONSE CFNTEP
FOR RELEASES OF CERCIA HAZARDOUS SUBSTANCES
FVR1 FYR2 FVR3 FY84
Hazardous substance release 3000 3300 5200 5000
reports to FPA Jteqions—
all sources3
Hazardous substance release • 1450b 1934 2240 2342
reports to NRC
Estimated hazardous substance 1910 1850 3520 3240
release reports to EPA
regions from sources
other than NRCC
a EPA estimates based on workload projections. Totals include CPT
notifications forwarded to F,PA Regions by National Response Center and
other possible duplication. Approximately 75 percent of the CEPCLA
reports received by the National Pesponse Center in calendar year 1Q83
were forwarded to the EPA Pegions.
b First guarter of FY81 estimated based on weighted average of subsequent
three months? actual figures unavailable.
c Rased on assumption that 75 percent of CFPCLA reports to National
Pesponse Center forwarded to EPA Regions.
Sources: Emergency Response Division and National Response Center.
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2-7
burden of reporting snail-Quantity releases, the adjustments may also
increase compliance with CERCLA notification requirements. In addition,
the preamble to the final rule will clarify CERCLA notification provisions.
Publication of these clarifications may increase responsible party and
public awareness of CERCLA notification requirements and thus increase
compliance.
MONITORING NON-FEDERAL CLEANUP ACTIVITIES
A major portion of the releases reported to EPA or the National
Response Center which require cleanup are taken care of by responsible
parties. Most others are cleaned up by State or local government agencies.
EPA monitors these cleanup activities to ensure that they are adequate to
protect public health and welfare and the environment from the dangers of
hazardous substance releases. Monitoring by a Federal on-scene coordinator
may be at the site or by telephone, to verify that responses are proceeding
as planned and to provide technical assistance and expertise to the
response team. On-scene monitoring usually is reserved for more complex
responses. Telephone monitoring tends to be used for response actions
that an on-scene coordinator believes are well within the capacity of the
respondinq party or agency.
In cases where on-scene monitoring is performed, EPA Regions provide
a representative (an on-scene coordinator or Technical Assistance Team
member) at the site of the release to ensure proper response by the
responsible party or by another agency. If the responsible party fails
to respond to a release adequately, the on-scene coordinator may seek to
initiate a Fund-financed removal and will collect enforcement evidence
for later cost recovery. Other on-scene monitorinq functions may include
rapidly mobilizing and coordinating communications and resources among
the various Federal, State, and local agencies, providing information to
the public, ensuring that appropriate safety eguipment is available, and
checking that proper safety equipment training is provided.
Off-scene monitoring involves providing direction and assistance by
telephone. In these cases, the on-scene coordinator has determined that
another agency, such as a state or local response authority, will be present
at the scene or that the releaser has formulated an appropriate response plan
and has a record of cleaning up releases adequately. The coordinator makes
follow-up telephone calls to check the progress of response activity at a
release site. Off-scene monitoring can include providing advice on
cleanup procedures, safety precautions, sources of equipment, and similar
specialized assistance. The on-scene coordinator may also decide, based
on information received over the telephone, that a Federal representative
is needed at a site.
Monitoring practices differ among the Regions. Variations in monitoring
practices may be attributed to differences in geographic, demographic, and
industrial characteristics, states' capabilities to respond, and Regional
resources and workloads. On-scene coordinators within each Region decide
on an incident-by-incident basis whether to monitor a particular release
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2-8
on-scene. Similarly, once removal work is underway/ on-scene coordinators
rely on their own judgment of proper monitoring procedures.
Goals and Related Policies of Monitoring
The primary goal of monitoring is to ensure that removal actions
carried out by private parties or non-Federal authorities adequately
protect public health and welfare and the environment from the threats
posed by hazardous substance releases, ffonitorinq also provides other
benefits. Adequate cleanup by private parties and States preserves Fund
resources for use at sites where no financially capable responsible
parties are identified. In addition, by providing specialized knowledge,
technical assistance, and training to the responsible parties or States
carrying out the removals, monitoring may increase their participation in
the future in responding to hazardous substance releases.
Neither the National Contingency Plan nor the removal guidance8 prepared
by EPA establishes an explicit role for monitoring, and no national policies
or guidelines exist for determining when or how to monitor. Even without
explicit guidance, monitoring has evolved into a major EPA activity,
because it enables the Regions to achieve the CERCLA goals of protecting
health and the environment while relying in large part on private party
resources.
Major Accomplishments of Monitoring
EPA estimates that the Regional Offices conduct on-scene monitoring
at approximately 300 to 500 non-Pederal removal actions each year.
Approximately 10 to 14 percent of all hazardous substance notifications
to the Regions were addressed through on-scene monitoring.*' The vast
majority of all notifications were addressed through off-scene monitoring.
EPA estimates that during the first two years of the removal program, up
to 20 percent of all federally-directed removals (approximately 20 out of
103 actions during that period) may have resulted from monitored removals
where the on-scene coordinator declared that the responsible parties were
incapable of taking appropriate action.1° itius, monitoring seems to be
effective in ensuring proper cleanup of hazardous substance spills.
Emergency Response Division, n.R. EPA, Superfund Removal Guidance —
Revision *1 (December 2, 1982).
Quarterly data on total notifications to the regions and regional
on-scene monitoring collected from the regions by the Emergency Response
Division.
Estimates provided by EPA Regional on-scene coordinators.
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2-9
When conducting on-scene monitoring, Federal on-scene coordinators
are able to pass on to States, localities, and responsible parties some
of their specialized knowledge concerning proper emergency response and
removal procedures, in addition to such ad hoc forms of training, EPA
has provided more than 200 safety and technical training courses since
the start of the Superfund program in various areas of the country.
Approximately 2,760 State and local response personnel, representing
roughly 50 percent of all participants, have attended these courses. The
courses has included both emergency response procedures and the use of
protective and safety eguipment. Several EPA Regional Offices are also
conducting or sponsoring such training courses to address the needs of
State and local first responders.
SHORT-TERM RESPONSES TO HAZARDOUS SUBSTANCE RELEASES
In addition to monitoring private party or State cleanup efforts, SPA
may choose to respond to a hazardous substance release with a removal
action. EPA may also undertake removals at hazardous waste sites identi-
fied through the site discovery and investicration process. The steps
leading to the perfornance of a removal may include the following:
0 Determining whether a health or environmental risk
exists from the release;
0 Evaluating the release to determine if it meets CERCLA
and National Contingency Plan criteria for a removal;
0 Recommending the release for a removal action (or
approval of the removal action by the on-scene
coordinator, if the coordinator has been delegated such
authority, the release of threatened release constitutes
an emergency and the action is expected to cost less than
$50,000);
0 Approving the removal by the Regional Administrator
or, if expected to cost more than $1 million, by the
Assistant Administrator of the Office of Solid Waste and
Emergency Response. For planned removals, executing the
appropriate contractual relationship with the state;
0 Procuring contractors and coordinating with other
Federal and State agencies;
0 Preparing necessary plans, including response plans,
site safety plans, and community relations profiles or
plans; and
0 Performing the removal, including monitoring of
contractor work, and proper disposal of the removal
material.
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2-10
These steps are discussed in further detail below.
After receiving notification of a release or identifying a site that nay
pose an imminent hazard, the on-scene coordinator performs an off-scene
preliminary assessment to determine whether a response action may be
necessary. The preliminary assessment typically includes: (1) evaluation of
the magnitude of the hazard; (2) identification, if possible, of the source
and nature of the release; (3) determination of whether any non-Pederal party
is ready, willing, and able to undertake the necessary response; and (4)
evaluation of the urgency of the problem. Vhen assessing releases from
hazardous waste management facilities, the on-scene coordinator may review
past and present site management practices, photographs, and any background
literature that may assist in the selection of appropriate removal activities.
In the case of hazardous substance spills, which freguently reguire some
sort of emergency response and for which background information is usually
lacking, the on-scene coordinator performs an abbreviated screening of the
notification. The screening is ordinarily performed over the telephone to
determine the extent of the spill, what actions are being taken at the spill,
and whether EPA or Coast Guard assistance is needed.
If the preliminary assessment or screening indicates that the release does
not constitute a tline-critical emergency, EPA conducts a more detailed
investigation to identify the health or environmental threats posed by the
release. The investigation may be performed by an on-scene coordinator or by
a Technical Assistance Team member and may include:
0 A site survey
0 Soil sampling
0 W&ter sampling
0 Drum sampling
0 Air monitoring
0 Visual characterization
0 Interviews with local residents.
The on-scene coordinator uses all available information in determining
whether to recommend a Fund-financed removal action. Factors used to
determine whether a health or environmental risk exists include: actual or
potential direct human contact with hazardous substances; contamination of
drinking water supplies or drinking water at the tap; hazardous substances
stored in bulk containers that pose a serious threat to public health or the
environment; serious threat of fire or explosion; highly contaminated soils at
or near the surface; and weather conditions that may cause substances to
migrate and pose a serious threat to public health or the environment.
The immediacy of the threat is evaluated to determine whether an
immediate or planned removal is more appropriate. Also, the on-scene
coordinator must consider whether timely action by a potentially responsible
party is expected, and whether a State or local agency is financially and
technically capable of responding. If the site is a candidate for a
planned removal, EPA initiates coordination with the State during the
evaluation process.
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2-11
If the on-scene coordinator determines that a Fund-financed removal is
necessary, the coordinator identifies and evaluates particular response
options to mitigate the threats posed by the release. This evaluation
considers the reliability, effectiveness, and technical feasibility of the
options, and their timeliness and cost. An action memorandum describing the
recommended response is then submitted to the Regional Administrator or to EPA
headquarters, as appropriate, for approval. For a planned removal, the State
must also submit a request for the action and an assurance of intent to
provide the reguired cost share.
After an immediate removal or an EPA lead planned removal is approved,
the on-scene coordinator obtains a cleanup contractor through EPA's
Emergency Response Cleanup Services system. The Emergency Response
Cleanup Services system groups EPA Regions into four zones and establishes
a single cleanup contractor in each zone through a prenegotiated contract.
The contractor supplies cleanup services, including the control and
disposal of released hazardous substances. The on-scene coordinator
signs delivery orders and supervises performance.
The on-scene coordinator is assisted by Technical Assistance Team members
and the Emergency Response Cleanup Services contractor in determining specific
methods for addressing the release. In addition, on-scene coordinators may
seek assistance from various groups established by the National Contingency
Plan, such as EPA's Environmental Response Team, the National Response Team,
or the Regional Response Team. The Environmental Response Team is a fully
eguipped group of technical experts who are available to respond to releases
that are beyond Regional capabilities. The National Response Team and ten
Regional Response Teams are interagency advisory and planning groups that deal
with response issues of national or regional scope. In some instances,
on-scene coordinators will seek assistance from other Federal agencies. For
example, the Centers for Disease Control assist with health effects analyses,
and the Federal Emergency Management Agency aids in temporary relocation of
any local residents who must be moved for safety reasons.
The on-scene coordinator works with EPA Regional public affairs staff to
prepare a community relations profile for a removal action expected to last
longer than five days and a conrunity relations plan for a removal action
lasting longer than 45 days. In addition, the on-scene coordinator must
prepare a site safety plan before work may begin at a release site. Among
other things, this plan sets forth the level of protection reguired at the
site; delineates the site's contaminated zone, decontamination areas, and
entry and escape routes; and identifies key personnel.
Once an immediate removal has been approved, the time needed to
mobilize and start work at the scene of the release varies according to
the nature of the work reguired. Under emergency circumstances, partic-
ularly where the nature of the removal activity is clear, work may begin
within a matter of hours, and several of the above steps may be performed
simultaneously. On the other hand, where the specific nature of the
threat and the steps needed to address the threat are less obvious,
several days may be reguired to develop an appropriate plan of response
and to begin work at the site.
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2-12
For planned removals, some additional administrative work must be
completed. The Region works with the State to execute a Superfund State
Contract or cooperative agreement outlining EPA's and the State's
responsibilities and the State's payment schedule for its cost-share.
For EPA lead removals, the on-scene coordinator begins the process of
procuring cleanup services, in most cases through the Emergency Response
Cleanup Services System. In a State lead action, the State must procure
a cleanup contractor. However, there has been only one State lead planned
removal.
Vfttile a removal action is underway, the on-scene coordinator is
responsible for managing the cleanup action and coordinating the involve-
ment of any other Federal, state, or local agencies. When the removal is
completed, the coordinator prepares a report summarizing actions taken at
the release site.
Goals and Related Policies of the Sunerfund Removal Program
The primary goal of the Superfund removal program is to prevent,
minimize, or mitigate acute threats to human life or health or the environ-
ment from hazardous substance releases. At the inception of the program,
senior EPA management defined additional goals, including to;
0 Provide a maximum opportunity to potentially
responsible parties and states to assume the burden of
performing removal actions;
* Ensure that all removal actions financed by the
Hazardous Substance Response Trust Fund are absolutely
warranted under the circumstances;
0 Prevent infringement by removal actions on the scope
of the remedial action program; and
0 Maintain consistency in program implementation through
centralized Headoruarters control of removal program
decisions.
Many of these goals, and the policiesdeveloped to implement these
goals, changed significantly in 1983. The following discussion of five
major EPA policy areas illustrates the broad changes that have occurred.
The policies discussed are:
0 Criteria for obtaining approval for an inimediate
removal action;
0
Creation of the category of planned removals;
Restrictions placed on performing removals at
sites on the National Priorities List;
Delegation of authority outside the Office of the
Administrator; and
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2-13
0 The requirement to conduct a contmunity relations
program for immediate removals.
Criteria for an Immediate Removal
The National Contingency Plan provides criteria for determining when
an immediate removal is appropriate. Section 300.65(a) states that an
immediate removal action may be appropriate when it will prevent or
mitigate an immediate and significant risk of harm to human life or
health or to the environment from such situations as: exposure to acutely
toxic substances; contamination of a drinking water supply; fire and/or
explosion; or similarly acute situations. A removal guidance document11
developed by EPA's Emergency Response Division repeats these criteria and
also emphasizes the need to evaluate the imminence and magnitude of the
health or environmental threat and the availability of a responsible
party or non-Federal authority to respond.
During the first two years of the removal program, EPA Headquarters
staff followed a very narrow interpretation of the National Contingency
Plan criteria for approval of immediate removal actions. In particular,
only removals that would prevent or mitigate immediate and significant
risks of harm were considered appropriate for Fund financing as immediate
removals. Removals oriented toward prevention of potential rather than
presently existing threats lacked the marked "sense of urgency" that was
at that time reguired for approval.
The policy of strict interpretation of the National Contingency Plan
criteria was modified in 1983. The new policy did not restrict immediate
removal actions to acute emergencies presenting major and presently
existing threats. Instead, immediate removals were allowed to address
significant threatened hazards, i.e., risks that did not necessarily
involve acute emergencies. As the changes discussed in the Accomplish-
ments Section illustrate, the pace of immediate removal activity increased
markedly during the last two guarters of FY83. EPA is currently considering
revising the National Contingency Plan to expand further the situations
where removal actions are appropriate.
Creation of the Category of Planned Pemoyals! Under CERCLA, a
removal is any authorized Federal response action which reguires less
than SI million and six months to complete. The statute does
not contain the concepts of immediate and planned removals. These
categories were created 'by the 19P2 revision of the National Contingency
Plan. 12
11 Emergency Response Division, U.S. EPA, Superfund Removal Guidance
Pevision »1 (December 2, 1982).
12 47 FR 31180; see 40 CFR sections 300.65 and 300.67.
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2-14
In the preamble to the final NCP, EPA stated that iirnrediate removals
were restricted to "situations of immediate and siqnificant harm to human
life or health or the environment; ... emergency situations which require
rapid immediate response." Planned removals were for "situations ...
which require an expedited response, but not an immediate one. In these
situations, more deliberation can be qiven to planning the
response action.13
One objective of distinguishing between an "immediate" and an
"expedited" response was to achieve better manaqement of the Fund.14 By
classifyinq a release as appropriate for a planned rather than an immediate
removal, EPA could use the state cost-share, planninq, and cost-evaluation
requirements of planned removals to maintain strict control over potentially
larqe Fund expenditures.
A number of policies were developed to implement the goals of planned
removal actions. Ihese policies, which are set forth in the Superfund
Removal Guidance, require that:
0 On-scene coordinators analyze removal alternatives,
including some evaluation of costs, before proceeding
with a planned removal request;
0 Planned removal requests undergo an extensive approval
process in the Regions and headguarters (this
reguirement was later modified by the April 1, 1984
redelegation of authority to the Regions); and
0 States share in the cost of carrying out planned
removals. Even at privately-owned sites, states must
pay 10 percent of planned removal costs.
CERCLA does not itself reguire any sort of cost-sharing for removal
actions. The cost-share requirement was imposed under the authority of
EPA's general grant regulations and the Agency's discretionary authority
under CERCIA.l5 EPA justified cost-sharing on a programmatic basis
because:
13 4? PR 31193.
14 ibid.
15 47 FR 31186, 31193.
-------
2-15
0 Cost-sharing provides evidence that the State
considers the site in question a threat and is comnitted
to removal action at the site;
0 Cost-sharing encourages an active State role in the
selection of releases that require response, which is
consistent with statutory goalsj and
0 Sufficient time will generally be available for doing
a planned removal to arranqe for cost-sharinq without
causinq a delay in response (47 FR 31193).
I7ie recent redelegation of authority to the Reqional Administrators
to approve all removals up to $1 million, ihcludinq planned removals
(discussed below) will reduce somewhat the time and effort required to
obtain approval of planned removals. However, fewer than 20 planned
removals have been completed since the start of the program, and EPA is
considerinq eliminating the oateqory of planned removals in the next set
of revisions to the NCP. It is likely that the state cost-share and the
multiple approvals and justifications required for planned removals may
have discouraqed many States from applying. The proposed revisions would
be designed to streamline response procedures while preserving the dis-
tinction between removal and remedial response actions.
Restricting Removals at Sites on the NPL: Prior to May 19R3, EPA
sharply limited the extent of removal activities at inactive or abandoned
sites that were on the National Priorities List to conserve Fund resources
for remedial actions and to avoid duplication of effort. Instead, EPA
targeted sites on the List for remedial actions, to ensure that the
actions would be subject to greater planning, cost-effectiveness analysis,
competitive bidding, and State cost-sharinq. 1**
As noted in Chapter 2 of this report, EPA's initial restrictions on
removals at National Priorities List sites were manifested in the most part
detail in Chapter 2 of this report, not through the number of removals
performed at such sites in 1981 and 1982, but through the limitations
placed on the scope of the removals that were performed. Most of the
removal activities that occurred at National Priorities List sites were
small-scale "stabilization" actions intended to reduce only the most
imnediate hazards present, e.g., by removing obvious fire and explosion
hazards, pumping down overflowing evaporation ponds or shoring up diking,
erecting signs and fences to keep people off the property, and other
relatively superficial actions. Illustrating the effects of the initial
policy, EPA has undertaken 47 removal "restarts" — additional removal
action at sites where a removal had been performed — 40 of which were at NPL
sites.
Removal actions and initial remedial measures to address acute
hazards at both NPL sites and non-NPL waste sites are discussed in
further detail in Chapter 1 of this report.
-------
2-16
In May of 1983, EPA began to place much greater emphasis on removal
activities at National Priorities List sites. First, because these sites
represent the roost significant known threats to public health and the
environment from hazardous substance releases, they were qiven top
priority for evaluation for immediate removal actions. Second, the scope
of stabilization activities at National Priorities List sites was broadened
considerably. Instead of restricting immediate removals to the avoidance
of imminent disasters and prevention of public access, EPA encouraged
more extensive stabilization and surface cleanup actions, to avoid the
need to return to the sites time and time again and to ensure that the
sites would be stabilized until remedial actions could be started.
Limited Delegation of Authority; Until January fi, 1982, all EPA
removal actions had to be approved by the Administrator. On that date,
the Administrator redelegated a small portion of this authority to the
Assistant Administrator and the Regional Administrators. Regional Admini-
strators were empowered to authorize immediate removals only at the
following:
(1) Releases from transportation accidents, active or
operating facilities, or deliberate illegal dumps of
hazardous materials; or
(2) Inactive or abandoned facilities or sites "when there is
a risk of death, injury, or catastrophic environmental
damage from releases." *?
The power to initiate removals at inactive or abandoned facilities
or sites without prior headguarters approval was to be viewed as "extremely
limited." Regional authority to commit funds without Headouarters'
approval was in any case limited to $50,000 per incident.
A substantial shift in the delegation policy begain in the spring of
1983. In May 1983, the Administrator delegated to the Assistant Admini-
strator of the Office of Solid Waste and Emergency Response the authority
to approve responses up to the six month and $1 million limits cited in
CERCLA. Shortly thereafter, the Assistant Administrator redelegated to
the Regional Administrators the authority to approve immediate removals
up to $250,000. The purpose of the redelegation of authority to the
Regions was not only to reduce approval times for inmediate removals, but
to place the authority for approving particular response actions with the
parties most knowledgeable concerning the relevant facts and circumstances.
Approximately one year after the Regional Administrators gained the
authority to approve immediate removals up to $250,000, a new redelegation
of authority took place. In April. 1984, the Administrator signed two
delegations that accomplished the following:
9 Regional Administrators may approve any removal action
up to $1 million, and may also grant exemptions from the
six-^nonth time limit, when the applicable CERCLA
Superfund Removal Guidance — Revision #1.
-------
2-17
criteria are satisfied. In addition, Regional
Administrators may delegate to their Division Directors
the authority to approve expenditures up to SI million
for projects lasting up to six months, and may
redelegate to on-scene coordinators the authority to
approve immediate removal actions up to S50,flOO for
classic releases from transportation accidents, active
facilities, or deliberate dumps, or imminent ha2ards at
inactive or abandoned facilities or sites.
0 The Assistant Administrator of the Office of Solid
Waste and B^ergency Response has the authority to
approve immediate removal actions that will initially or
eventually reguire obligation of more than $1 million.
The April 1984, redelegation of authority reversed the highly
centralized approval structure adopted during the first two years of the
program. It placed the entire removal program in the hands of the people
most closely connected with day to day removal activities. EPA. intends
to assess the effectiveness of this delegation of response authority to
determine the extent to which more or less delegation of authority will
be appropriate in the future.
Community Relations Policies: In November 1981, EPA issued a policy
and guidance memorandum on the implementation of a community relations
program for Superfund actions. The guidance specified that community
relations plans had to be developed for remedial sites and for planned
removals expected to last longer than two weeks.
As EPA acguired experience with the removal program, it found that
community relations activities were also essential at emergency response
actions. Citizens living near the release wanted information about the
release, as well as about the effects of the removal action. They also
wanted to have the opportunity to interact with response officials.
Therefore, in May 1983, EPA revised its community relations policy to
require that a community relations plan had to be submitted to Headquarters
for any immediate removal action reguiring Headguarters approval. The
September 1983 Interim Community Relations Handbook clarified this requirement
further. It stated that for any immediate removal action lasting longer than
five days, a community relations profile — an abbreviated form of community
relations plan —must be prepared. If an action is anticipated to last
longer than 45 days, a community relations plan must be prepared. In
addition, for planned removal actions, officials must conduct discussions with
members of the community before preparing community relations plans and must
submit responsiveness summaries to EPA Headquarters when the actions are
completed.
-------
2-18
Major Accomplishments of the Superfund Removal Program
The CF.RCLA removal program has evolved into an active emergency response
and protection program. Exhibit 2-3 summarizes all removal activity from the
start of the Superfund program through September 30, 1984. In that span of
time, EPA completed 336 immediate removals (out of 367 started) and
14 planned removals (out of 17 approved), and obligated approxinnately $86
million. In the same period, the Coast Guard completed another 38 immediate
removals at a cost of about SI.7 million.
Removal costs have ranged from under 51,000 to more than $2 million. I8
Although in the latter case an exemption from CERCLA's $1 million limitation
on removals was necessary, EPA granted only three exemptions from this limit
in each of the first three years of the program, as Exhibit 3-5 shows. Nine
exemptions from the $1 million limit were granted in FY84. EPA has
granted a greater number of exemptions from the 6 month time limitation:
18 in FY81, 4 in FY82, 13 in FY83, and 20 in FY84. For purposes of the $1
million and six month limitations, EPA treats the money and time spent at
a particular site cumulatively, aggregating the initial removal action
with any restarts that are subseguently approved for the same site.19
Because 35 removal actions in fiscal years 1981-83 lasted longer than six
months, the average duration of a removal was skewed upwards; the average
duration has been about 23 days, while the median duration has been only
14 days.20
The policy changes in the spring of 1983 substantially affected the level
of Superfund removal activity. For example, from December 1980 to February
1983, EPA conducted 119 removal actions. From March 1983 through September
1983, however, 102 additional removals were conducted, almost matching in
those six months the total removal activity of the previous two years. 21
Removal actions during FY 84 increased more than 60 percent over the FY
83 level.
18 Emergency Response Division, "Superfund Removal Actions December 11,
19PO-September 30, 1983 — A Presentation to the National Response Team,"
January 5, 1984, p. 10.
19 Interview with Emergency Response Division staff, July 10, 1984.
20 Emergency Response Division, "Superfund Removal Actions December 11,
1980-September 30, 1983 — A Presentation to the National Response Team,"
January 5, 1984, p. 11.
21 Statement of Lee M. Thomas before the Senate Committee on Environment
and Public Works, April 25, 1984.
-------
2-19
EXHIBIT 2-3
SUMMARY OF CERCLA REMOVAL ACTIVITV
12/11/RO-9/30/R4
ACTIVITIFS
EPA
Immediate Removals
Non-NPL
NPL
TOTAL
Planned Removals
Non-NPL
NPL
TOTAL
USCG
Nbn-NPL
NPL
TOTAL
Actions
Started
Actions
Completed
Percentage
of. Funded
Actions
Completed
22R
139
367^
14
3
17
37
1
38
204
132
336
11
3
14
37
1
3*
89
&
92
79
M
R?
100
ion
100
TOTAL
38RC
FUNDING
Estimated Obliqations as of 9/30/84 (in thousands of dollars)
EPA
— Immediate Removals S79,fi44.7
— Planned Removals • 6,210.6
liSOG 1,698.6
TOTAL $87,753.9
a Includes 22 CERCLA removals initially funded under Clean Water Act
section 311 during period monies from CFRCLA Fund were not yet available.
k includes 32 removal actions in West Pacific Trust Territories, 40
restarts at National Priorities List (NPL) sites, and 7 restarts at
non-NPL sites.
c includes 37 restarts at NPL sites and 5 restarts at non-NPL sites.
Source: Removal Tracking System, Emergency Response Division.
-------
2-20
EXHIBIT 2-4
APPROVED EXEMPTIONS PROM STATUTORY LIMITS
FY81 FY82 FY83 FY84 Total
(throuqh
8/15/R4)
SI Million Exeirption 33 3 9 18
Six Month Exemption 18 4 13 20 55
Sources: Emergency Response Division
Exhibits 2-5, 2-6, 2-1, and 2-8 illustrate the rapid growth of the
removal program. Exhibit 2-6 indicates that the number of removals
initiated each year rose 58 percent from FY81 to FY82 (36 to 57) and
again by 119 percent from FY82 to FY83 (57 to 125). 22 in FY84, EPA and the
Coast Guard together initiated 204 removals, a 63 percent increase over the
previous year.
The redelegations of authority to approve removals substantially reduced
the time needed to process immediate removal requests. Prior to February 8,
1983, 50 percent of all immediate removal requests were processed in eight
days or less and 90 percent of the requests were processed in 19 days or
less.23 Between February 8, 1QR3 and June 30, 1983, fin percent of all
immediate removal requests were processed within one day, including requests
which Regional &3ministrators decided; EPA Headquarters processed 50 percent
of the immediate removal reguests submitted to it in four days or less; and 90
percent of all requests were processed in nine days or less. 24 rxaring this
latter time period, 58 percent of all removal decision were made at the
22 These figures include (a) 47 restarts and (b) 22 CERCLA removals
funded under Clean Water Act section 311 during the period the CERCLA Fund was
unavailable.
23 Headquarters Technical Assistance Team, Analysis of ERD Removal
Recyuest Processing, Phase II, February 8-June 30, 1983 (TDD No. 138302-01-A),
pp. 2 and 7.
24 ibid.
-------
2-21
Regional level. Between July 1, 1983 and September 30, 1983, overall
processing times decreased even further, as 70 percent of all immediate
removal requests were processed within one day. 25 -phe Regional
Administrators decided 81 percent of these cases.
Planned removals were not included in the 1983 redelegation of approval
authority to the Regions. Because of the additional documentation and
approvals required for planned removal requests, processing time remained
lengthy. In FY82, three of the 10 planned removal requests were processed
within four working days. Five of the 10, however, required 22 or more days
to process, and three of these required more than 50 days to process. 26
During the first three quarters of FY83, five of the six planned removal
requests submitted required more than 25 working days to process. 2?
An additional institutional change in 1984 was EPA's adoption of the
Emergency Response Cleanup Services program, initiated February 1, 1984. This
program replaced a lengthy and cumbersome procurement procedure that relied on
case-by-case negotiation of services, hours, material, and costs and that
frequently precluded competitive bidding in emergency situations. Under the
Emergency Response Cleanup Services system, the on-scene coordinator need only
prepare a Delivery Order to obtain guaranteed cleanup services for a
particular site at a prenegotiated and competitive price. Response time
limits in the contract vary from 1.5 hours, for incidents within a 50-mile
radius of New York City, to 24 hours, for incidents in the State of
Alaska. 28 The on-scene coordinator may still resort to the old procurement
system when the Emergency Response Cleanup Services contractor cannot respond
in a timely fashion, when a conflict of interest may exist, or when a unique
situation warrants another contractor.
In the area of community relations, no formal tracking system exists that
allows EPA Headquarters to determine whether the Regions are complying with
current ccranunity relations policies for immediate and planned removals.
Vfaile there has been increased emphasis on strengthening the community
relations program for removals, it appears that compliance with program
requirements is still sporadic. Only 4 out of the 10 Regions, for example,
have consistently prepared community relations profiles. However, continuing
emphasis on community relations is likely to increase community involvement in
removal activities.
25 Headquarters Technical Assistance Team, Analysis of ERD Removal
Request Processing, Phase III, July 1-September 30, 1983 (TDD No. 138302-11)
26 Headquarters Technical Assistance Team, Analysis of ERD Removal
Request Processing and Program Guidance (TDD No. 138302-1), March 25, 1983.
27 Ibid; Headquarters Technical Assistance Team, Analysis of ERD
Removal Request Procession, Phase II, Februrary 8 - June 30, 1983 (TDD No.
138302-01-A) , p. 4.f
2^ Emergency Response Division.
-------
2-22
In sum, immediate removals appear to constitute a successful and rapidly
expanding element of the Superfund emergency response proqram. Planned
removals, on the other hand, because so few have been performed, have not
achieved to any significant extent the qoal of providing an expedited response
in situations where a removal (as opposed to a remedial) action is necessary.
EPA is considering revising the National Contingency Plan to eliminate the
category of planned removals. Similar institutional adjustments are being
made on a continuing basis to improve the effectiveness of removals in meeting
CERCLA goals.
2-S
SriPERFTTKTn REMOVALS INITIATED BY FISCAL YEARS a/
FPA
Immediate
Non-NPL
MPL
Total Immediate
Planned
Non-NPL
NPL
Total Planned
Total EPA
USCG
Non-NPL
KFPL
TOTAL USCG
TOTAL
FY81
q b/
27 C/
FY82
FY83
FY84 Total
36
18
28
46
9
1
10
57
63
47
110
10
10
125
138
37
18
IB
204
228
139
367
1
1
47
4
1
5
115
10
1
11
186
14
3
17
384
37
1
38
42?
a Where applicable, figures include approved restarts of removal activity
at existing sites.
b Includes 3 removals funded under Clean Water Act section 311.
c Includes 19 removals funded under Clean Water Act section 311.
^ Includes total of 47 restarts.
-------
EXHIBIT 2-6
SUPERFUND REMOVALS STARTED BY FISCAL YEAR
NUMBER OF
STARTS
200
180 -
180 -
140
120
100 -
80 -
60 -
40
20 H
0
(204)
(129)
(57)
(38)
1981
1982
1983
1984
FISCAL YEAR
_§_/ These Totals Include 47 Approved Restarts And 38 Coast Guard Removals.
The FYS1 Total Also Includes 22 Removals Initially Funded By The CWA Section
311 Program Because The CERCLA Fund Had Not Yet Accumulated Sufficient Monies.
Source: Emergency Response Division, U.S. EPA (September 30, 1984)
-------
2-23
EXHIBIT 2-7
SUPERFUND REMOVAL OBLIGATIONS BY FISCAL YEAR
(Contract OOTmitments) ($00ns)
FY81 FYR2 FY83 FY84 a/ Ttotal
EPA
Inrediate 9922.6 11,924.3 20,804.9 37,192.9 79,R44.7
Planned — 74.8 3,174.0 2,961.8 6,210.6
USCG
Dnmediate - 637.3 270.3 791.0 1,698.6
TOTAL 9,922.6 12,636.4 24,249.2 40,9*5.7 87,753.9
Sources: U.S. EPA Financial Management System
-------
EXHIBIT 2-8
SUPERFUND REMOVAL OBLIGATIONS BY FISCAL YEAR
MILLIONS
OF
DOLLARS
42-t
40-
38-
36-
34-
32-
30-
28-
26-
24-
22 -
20 -
18 -
16 -
14 -
12 -
10-
8 -
6 -
4 -
2 -
0 -
(40.9)
(24.2)
(12.6)
(9.9)
1981
1982 1983
FISCAL YEAR
1984
Source: U.S. EPA Financial Management System.
-------
RXHMMT 1-fi
CLEANflP ACTIONS APPROVED
Site Name
AfcF Materials, TL
Berlin and Farro, Ml
Bruin Laooon, PA
Burnt Fly Boa, NJ
Celtor Chemical Works,
CA
Problem at the Site
Rite contains contaminated
linuid wastes, oil-, sludne, awl
soil, as well as drums of un-
known contents. Contamination
is movina toward river used for
drinkinn water.
Rite consists of ? contaminated
laooons, a landfill with hurled
drums, a paint sludoe trench,
and numerous pockets of liquids,
slurtnes, and solvents.
Contamination of surface water
and arounduater threatened hy
leachinci from open lagoon con-
tainina asphaltic slurtoe and
acidic linuid supernatant. Site
also contains effluent overflow
pond, covered lanoon sludne
nixed with soil, and contaminated
soils.
Rite consists of * lancons con-
tain inn contaminated shrine,
drummed materials, a tar patch,
and an asphalt pile with oroanic
pollutants.
nrininally operated as sulf ide
ore procession plant, site con-
tains exposed ore piles, open
ore bins, contaminated soils,
and partially filled extraction
vats. Heavy metals such as cad-
mium, zinc, and copper found
at site.
r»ate of
Cleanup
Decision
11/23/R3
Ofi/ft?/"?
Previous
Cleanup Actions
Immediate removal conducted to
lower waste levels; install dike
and trench; remove wastes; and
install temporary cap over por-
tions of site.
Various state and EPA-funrted
actions undertaken to remove
sludne in lanoon; fence the
site; and excavate drums.
None
11/1S/R3
Rite has been fenced and a sec-
tion of dike has been repaired
to prevent lanoon spillape.
None
Cleanup Action Approved
Initial remedial measure approved
involves removal and off-site
disposal of contaminated wastes
and oils and removal of drums
(RPA lead).
Remedial action approved involves
excavation of drums in landfill,
construction trench; off-site
disposal of wastesl and incineration
of PCBs (state lead).
Remedial action approved involves
removal and off-site disposal of
supernatant; physical stabilization
of lanoonj cleanup of effluent
pondl diversion of oroundwater;
and stabilization of lanoon dike
(EPA lead).
Two phases to remedial cleanup
(RPA lead):
1. Demoval and off-site disposal
of some contaminated materials.
2. Removal and off-site disposal
of remainina hazardous materials
and restoration and revenatatlon
of the area.
nroundwater monitorinn included
in a second phase.
Initial remedial measure approved
for the site involves removal and
off-site disposal of contaminated
materials (RPA lead.)
Costs of
Approved
Action
sill,nno
S9 million
S1.S million
Phase I-S2.3
million
Phase ?-SS.1
million
S340,000
-------
I-H (
cleanup site. Rxact nature of
previous actions not specified.
Both wells taken out of service.
iisino CFRCLA enenjency funds,
RPA repaired damaged drws and
started approximately «,nrm other
drums. EPA subsequently re-
moved and disposed off-site sere
of the hazardous materials.
Fence installed and eciuipoent
and debris were reroved fron>
site.
None
Cleanup Action Approved
Initial rwedial measure approved
ho extend a nearby water sunply
svsten to affected residents.
Initial remedial n«asur« approved
to remve and dispose of qas cy-
linders of unknown contents, to
clean and reconstruct storm sewer
systen, and deoontar'i rwte th
the site and re-oval vehicles on the
site (RPA lead).
Interim twnedial cleanup approved
to remove contanination of one
well through aeration. Further
work is underway to determine
source of contamination (RPA lead).
Interim remedial cleanup involves
off-site disposal of the liouid,
slutVie, liner, and contaminated
soil frow larjoon (state Inad).
Remedial cleanup approved for the
site involves removal and off-
site disposal of soil with PCR
concentrations over 10 pr». Addi-
tional excavation will he under-
taken where cost-effective (P.PA
lead).
Remedial cleanup approved involves
constructing a wall around Ifi
Costs of,
Approved
Action
million
sson,nnn
.d milli
Rl.« milli
-------
RXHIRIT 1-B (continued)
REMEDIAL CLEANUP ACTIONS APPROVED
Site Name
Matthews Electroplating,
McColl Site, CA
Mcf in Company, MR
Milltovm Reservoir
Sediments, MT
Hinker, Stout, Cashel,
Pull ins, ouail Run, and
Sontaq Road Sites, MD
New Briqhton/Arden
Hills, MN
New Briqhton/Arden
Hills, MN
Problem at the Site
nroundwater is contaminated with
chromium from electroplatinq
operations at the site, Oround-
water is used for drinkinq
water.
Site used for disposal of acid
sludqe wastes and drilllnq muds.
Soil is hiohly acidic, with hiqh
sulfur and orqanic content.
site is located in abandoned
sand and nravel pit and contains
tanks and a laaoon containina
various oil and liquid chemical
wastes and volatile omanics.
Potential contamination of
qroundwater.
nroundwater is contaminated with
arsenic and other heavy metals
affectinq drinkina water for
area.
Soil at six residential sites
contaminated with dioxin.
PIune of contaninated qround-
water, spread over approximately
18 square miles, has affected
drinkinq water supplies of
48,100 residents.
(See above)
Date of
Cleanup
Decision
06/0?/R3
04/U/fl4
tn/15/«3
Previous
Cleanup Actions
None
None
State supervised removal of oil
and liquid chemical wastes.
04/14/R4 None
1984 Permanent relocation offered to
11 families in Minker/F.tout area,
temporary relocation offers made
to 7. other families in Minker/
Stout area and 100 residents of
Ouail Run area.
06/24/P3 Several municipal and private
wells have been closed.
09/19/R3 (See above)
Cleanup Action Approved
Ceroedial action approved to extend
nearby nuninipal water supply to
residents affected by qroundwater
contamination (EPA lead)
Approved cleanup action includes
excavation and off-site disposal
of wastes with monitorinq and
control of emissions (state lead).
Initial remedial measures approved
for site consists of off-site
disposal of liquids and studqes,
on-site cleaninq of tanks, and
Off-site transport of enoty tanks
(state lead).
Remedial action approved involves
replacinq existinq water supply
and distribution system and flush-
ino each house's pipe system
(state lead).
Remedial cleanup of sites includes
excavation of contaminated soil
and transport of the soil to an
interim storage facility (a con-
crete vault with a flexible cover)
at Times Beach, MO (FPA lead)
Initial rwiedial measure approved
to treat the municiple water
supply for city of New Rriqhton
(RPA lead).
Additional inital remedial mea-
sure approved to extend a nearby
water supply to fi residents
(state lead)
Cbsts of
Approved
_Action
million
S<«7,onn
sis.7
million
siRn,nnn
-------
l-« (continued)
REWEP.1AL CLEANUP ACTIONS APPROVED
Site name
Xjthoard Marine Cor-
x>ration, IL
"rice Landfill, NJ
Re-Solve, Inc., MA
Ran Gabriel Area 1, CA
Stringfellow Acid Pits,
CA
Problem at the Site
Rite consists of VbuKenan Harbor
and adiacent property of the
Outboard Marine Corporation and
is contaminated with PCRs.
Oroundwater contamination has
resulted from leachina from land-
fill. Contamination has affected
local drinkino water wells and
threatens water supply for
Atlantic City.
Surface water and nroundwater
are contaminated with PCFte,
volatile oroanics, and heavy
metals as a result of operations
at former solvent reclamation
facility. Site contains A
unlined lagoons, oil spreading
area, and coolino pond filled
with sand and contaminated soil.
Plume of ciroundwater contaminated
with chlorinated hydrocarbons
(including PCB and TCE) has
affected an area 4 miles lonn and
1-1/2 miles wide.
As a result of dumpinq of toxic
wastes, surface water is con-
taminated and drinkina water
supply is threatened.
Date of
Cleanup
Decision
05/15/ft4
n<»/20/R3
Previous
Cleanup Actions
None
Local residents have been re-
quired to use bottled water. EPA
and the state of Hi have imple-
mented several measures at a
nearby water treatment plant in
the event the plume reaches the
wellfield for Atlantic City.
None
OS/11/M
None
Intensive remedial cleanup
actions have been conducted.
Cleanup Action Approved
Remedial cleanup approved for the
site includes extensive dredging,
excavation, dewatering, fixation,
off-site disposal, and cappinn
operations (EPA lead).
Remedial action approved involves
relocatinn the Atlantic City well-
field and conducting treatment
studies to manage contaminated
plume (state lead).
Approved cleanup action involves
excavation and off-site disposal
of approximately 7,000 eobic yards
of contaminated wastes and soils
(EPA lead).
Initial remedial measure approved
for the site involves treatino
well discharge with an air-
stripping system to lower PCE
contaminlation (F.PA lead).
Initital remedial'measure approved
for the site will augment remedial
actionns currently underway.
Approved actions include fencinn
and erosion control, off-site
disposal and various interim
actions to mitigate contaminated
groundwater.
Cost of
Approved
Action
million
S24.7
million
3.a million
speci-
fied
-------
FXHIBIT 1-ft (continued)
CLFANIIP ACTIONS APPROVED
Site Name
Sylvester, NH
Sylvester,
Taputimu Farm, American
Samoa
Problem at the Site
Illenal dinning of toxic wastes
has resulted in contamination
qroundwater that potentially
threatens to contaminate drinkina
water supply.
(See above)
Date of.
Cleanun
necision
07/29/82
09/27/K3
Previous
Cleanup Actions
Under Clean Water Act section
311, drums were removed and dis-
posed of off-site. CRPCIA emer-
tjencv funds used to install
qroundwater inception and recir-
culation system to retard miqra-
tion.
(see above)
Site used Cor storage of aciri-
cultural chemicals and pesti-
cides. Approximately 4,nnn
pounds of. liouid and solid chemi-
cals are stored in a warehouse
and are affectino warehouse
workers.
1V27/P3
Mone
Cleanup Action Approved
Penedial cleanup action approved
involves installation of a
wall and surface cap of site
(state lead).
Costs of
Approved
Action
Not spec-
fied
Further remedial actions approved S4.7 mi Dion
for the site involves construc-
tion of water treabnent plant to
extract and treat contaminated
arounowater (state lead).
Remedial actions approved for the $lfiO,non
site involve decontaminating the
warehouse and transportinq the
decontaminated and stored wastes
to the CI.S. mainland (EPA lead).
-------
3-1
3. CHARACTERIZING REMOVAL ACTIONS
INTRODUCTION
This chapter provides additional information concerninq the threats
found and response actions taken at release incidents and sites addressed
by the removal program. The discussion delineates the diverse situations
faced by the removal program and the wide range of options available for
responding to actual and potential hazardous substance releases. The
chapter also presents three case studies that illustrate how EPA makes
decisions and how various removal activities are typically carried out.
REVIEW OF PAST REMOVAL ACTIVITIES
EPA recently undertook a study of removal actions approved between
October 1, 1983 and May 16, 1984, to characterize the actions and assess
consistency in the removal program. 1 During that time period, a total of
142 removals were approved, with 129 approved by EPA and the rest by the
Coast Guard. When the study was initiated, CERCLA-funded on-site work
had begun at 105 of the EPA approved projects, and private party response
negotiations or actions were under way at 13 of the remaining 24 sites.
In general, these 129 removal actions are representative of the type of
removal actions EPA is likely to undertake. However, due to the major
policy changes in the spring of 1983, these actions may not represent
removals occurring in fiscal years 19R1 and 1982.
The threats that these removal actions responded to were divided
into two major categories, health and environment. Health threats include
direct contact, fire and/or explosion, drinking water contamination, food
chain contamination, and air contamination/inhalation. Environmental
threats include surface water contamination, ground water contamination,
soil contamination, and ecological damage. The threats from the
129 sites were as follows:
0 Health threats were present at 87 percent of the sites.
0 Environmental threats occured at 83 percent of the sites
0 Combined health and environmental threats were present at
76 percent of the sites.
0 Environmental threats alone occured at eight percent of
the sites
Booze, Allen and Hamilton, "Consistency of Regional Removal Decisions",
Final Report, August 30, 1984.
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3-2
* The most frequently occurino health threat was direct
contact at approximately 79 percent of all sites.
other threats occured far less often, from food chain
contamination at fewer than one percent of the sites to
drinking water contamination at 21 percent of the
sites.
0 The most frequently occurinq environmental threat was soil
contamination at 43 percent of the sites; surface water
and qround water contamination were present at 27 and 23
percent of the sites respectively.
As presented in Exhibit 3-1 removals were taken in response to a
variety of different incidents or problems. However, more than 60 percent
of the incidents involved abandoned cotainers or abandoned waste facilities.
More than 127 different types of hazardous substances were found at the
sites. The 13 most commonly found substances or classes of substances
are presented in Exhibit 3-2.
A number of different types of activities may be undertaken in the
course of a removal action. Exhibit 3-3 presents 13 categories of actions
and examples of each. At any given site, the combination of response
activities may result in a stabilization or cleanup of the site. The
most commonly occurinq types of response actions were removaKe.q.,
removing soil or other contaminated materials from the site), disposal,
and source control, and most incidents required some combination of these
activities. Ihe decision on the type of activities to undertake may be
influenced by such factors as the type of site (non-NPL vs NPL sites,
where there is the potential for more extensive cleanup later); the
type of incident; the substances released; and the extent of the threat.
The scope of response at a site may range from limiting access by
fencing or temporary relocation to substantial cleanup through removal
and off-site disposal of some or all of the contaminants. Approximately
two-thirds of the completed removal actions were cleanups, i.e., mitigation
of the threat to the extent that, barring unforseen circumstances, EPA
has no plans to treat the site again. The rest of the completed sites
were characterized as "stabilizations", alleviating exposure sufficiently
to allow for more orderly planning for further action. However, all the
actions at NPL sites were stabilizations, and 90 percent of the completed
actions at non-NfPL sites were cleanups. The length of time it took to
complete these actions ranged from one day to 69 days, with an average
length of 27 days.
-------
3-3
RXHIBIT 3-1
National Incident Profile
Approved Removals
10/1/P3 - 5/16/84
All Removals
Incident Type
Abandoned Container
Abandoned Waste Site
Active Facility
Contaminated Fill
Fire
Former Facility
Radiation
Transportation
Uncontrolled Release
Well Contamination
National
SumjT\ary
No.
23
64
6
7.
3
• 20
3
2
12
7
142
%
16.2%
45.1
04.2
01.4
02.1
14.1
02.1
01.4
08.4
04.9
99.9%
EPA Removals
. No
1R
64
6.
7
3
IP
3
1
7
7
129
%
13.9%
49.6
4.6
1.6
2.3
13.9
2.3
O.R
5.4
5.4
99. «%
* Error due to rounding
111-8
-------
3-4
EXHIBIT 3-2
National Profile
of Most Common Substances
Substance Number of Percent of
Approvals* Ttotal Removals
PCBs 30 33.?
Pesticides/DDT 18 13.9
Heavy Metals** 18 13.9
Orqanics 12 9.3
Toluene 11 8.5
Cyanide 9 6.9
Benzene 7 5.4
Paints 7 5.4
Caustic Solda 6 4.7
Acids 5 4.7
Ethylbenzene 5 3.9
Trichloroethylene 5 3.9
Xylene 5 3.9
NA 8 6.2%
* Wumbers are non-additive since more than one substance may be found
at a removal.
** Includes lead (7) and chronium{6}
III-9
-------
3-5
EXHIBIT 3-3
Removal Action Categories
1. Site Security
2. Source Control
3. Sampling
4. Migration Control
5. Relocation
6. Measuring
7. Water Supply
8. Damage Control
9. Excavation
10. Removal
11. Salvage Operations
12. Disposal
Installed fence, maintained security guard,
secured buildings
Overpacked drums, pumped down overflowing lagoon
staged drums, capped landfill, fought fire,
controlled release, solidified materials
Sampled containers, soil, air, water, etc.
Installed sorbent booms, dug ditches
Evacuated on temporary or permanent basis
Conducted environmental,-assessment, conducted,
ground water supply, conducted magnoneter study,
installed monitoring wells
Provided temporary supply, provided permanent
supply, provided bottles, provided tanks,
installed hook ups, installed pipline
Stabilized stream
Dug pits
.Decontaminated buildings, removed soil, aqueous,
material, sludge, containers, contaminated
debris
Recycled wastes/materials
Landfilled wastes, incinerated wastes, transported
wastes for disposal
13. Site Restoration
Graded, seeded, restored, applied hay
-------
3-6
REMOVAL ACTION CASE STUDIES
This section presents three examples of removal actions taken pursuant
to section 104 of CERCIA. All three site actions were taken under EPA's
immediate removal program and were conducted during fiscal year 1983.
These specific examples were chosen because they differ significantly
with respect to the nature and immediacy of the threat existing at the
site as well as the scope of action taken to abate or minimize the site
hazard.
The first removal example (Western Processing) was conducted at a site
listed on the NPL targeted for future remedial action. This example
illustrates that a removal action to stabilize an immediate threat may be
conducted concurrently with remedial activities. It also illustrates
conditions and manner in which a removal action may be conducted at an
NPL site.
The second removal example (Brown's Field) was conducted at a non-NPL
abandoned hazardous waste site. This example illustrates that a removal
action may be conducted at a site which poses a significant threat to
public health and the environment, but which does not score high enough
on EPA's hazardous ranking system to be listed on the NPL for remedial
action.
The third removal example (Hampton Cylinder) was also conducted at a
non-WPL site. Similar to Brown's Field, this example illustrates that a
removal action may be conducted at a non-NPL site which poses a significant
threat to public health and the environment. This situation, however,
differs from Brown's Field with respect to the immediacy of the threat
and the response action taken to abate that threat.
WESTERN PROCESSING SITE (NPL Site)
Site Background
This site is a 13 acre chemical recycling and reclamation facility in
Kent, Washington owned by the Western Processing Company. It received
and stored chemical and industrial wastes from 1961 to 1983. The area
surrounding the site is predominately commercial, light industrial,
agricultural, and residential. Two residences and a number of commercial
and industrial buildings are located within one-half mile of the site.
Adjacent to the site is a frequently used bicycle and jogging path. A
stream known as Mill Creek flows along the western boundary of the site,
eventually entering the Duwamish River and Puget Sound.
This site contained approximately 4000 to 6000 drums, 70 bulk storage
tanks, several piles of unconfined chemical and industrial wastes, 10
surface impoundments, 5 PCB transformers, and various other structures
containing a variety of hazardous substances. These substances included
acids, caustics, wastes containing cyanide, heavy metals, ignitables, oils,
PCBs, and other hazardous substances. The site contained a total of
eighty-seven priority pollutants, including forty-eight known or suspected
carcinogens.
-------
3-7
NPL Listing and Remedial Planning Activities
Western Processinq had interim status to store hazardous wastes
under the Resource Conservation and Recovery Act (RCRA). In March of
19R1, EPA discovered that the operator was in violation of various RCRA
hazardous waste management regulations. In early 19&2, a Compliance
Order was issued requiring the operator to undertake various actions to
meet existing regulations. The operator failed to comply with this
order. In July of 1982 the site was listed on EPA's National Priorities
List (NPL) for CERCLA remedial action. In July of 19P3 EPA ordered the
operator of this facility to cease operations.
Tb date, a variety of remedial response activities and an immediate
removal action have been conducted at this site. Remedial response
activities include the completion of a remedial action master plan as
well as the initiation of the remedial investigation and feasibility
study. This remedial project is expected to be completed by the end of
fiscal year 1986. Because the site posed an immediate threat to public
health and the environment, EPA determined that an immediate removal
action should be conducted concurrent with on-going remedial activities.
On April 11, 19R3, EPA issued an administrative order under section
106 of CERCLA requiring the site operator to undertake specific actions
necessary to eliminate the immediate hazards at the site. After the
site operator indicated an inability to take action, EPA authorized an
immediate removal on April 15, 19R3. The general goal of the removal was
to stabilize the hazardous nature of the site, and to mitigate the immediate
threat to public health and the environment.
Nature of Immediate Threat
EPA determined that the site posed an imminent and substantial
threat to human health and the environment. The nature of the threat was
direct contact of hazardous substances to humans, a fire and explosion
hazard, as well as both on and off-site contamination of soil, surface
and ground water. These threats existed due to the following site
conditions.
First, containment structures were in various stages of deterioration
and otherwise poorly managed. These containments were releasing hazardous
substances into the environment in significant quantities. The release of
these substances resulted in both on and off-site contamination of soil,
surface and ground water.
One major route of off-site contamination was Mill Creek which runs
through the site, eventually flowing into the Duwamish River and Puget
Sound. Sampling and analysis of Mill Creek identified hazardous substances
downstream from the site, including a number of carcinogens. These
bodies of water are used extensively for fishing and recreational purposes.
Hazardous substances have also been detected in an underground aquifer,
potentially contaminating a local supply of drinking water.
-------
3-8
Second, drums containing flammable hazardous substances were releasing
toxic fumes into the environment. This situation created a serious fire
and explosion hazard.
Third, the fence surrounding the site was in various stages of
disrepair, petmiting uninhibited access to the site. Fourth, on-site
vehicles had been observed tracking contaminated material onto the adjacent
roadways and neighborhoods.
Response Options
To stabilize conditions on-site and to prevent further off-site
contamination, EPA determined that an immediate removal action was warranted.
Three options were considered to eliminate the immediate threat at this site:
Option 1: Stabilize Substances and Store On-site
o overpack drums;
0 Supply new tanks; and
0 Stabilize fertilizer, flue ash and battery
chip piles on-site.
Option 2; Partial Clean-up and Disposal
0 Stabilize all bulk materials on-site
(e.g. battery chips and fly ash);
0 Treat surface ponds on-site or dispose
off-site;
0 Decant ink bottoms and treat effluent;
0 Stabilize and cover the fertilizer pit
to prevent run-off or leaching; and
0 Dispose of 1500 to 2000 drums off-site.
Option 3; Complete Surface Clean-up and Disposal
0 Remove all containments, flue ash,
zinc bottoms, and fertilizer pit;
0 Clean surface pits; and
0 Bnpty all tanks.
Evaluation of Options;
EPA determined that the Partial Clean-up Option (Option 2 )
was the most cost-effective removal action. The following matrix
summarizes the criteria EPA used to determine the appropriate
action for this site:
-------
Task
Technically
Feasibile
Estimated
Cost
Option 1
yes
$1,095,000
3-9
Option 2
yes
$ 750,000
Option 3
yes
$2,709,000
Effectiveness
in eliminat-
ing immediate
threat on and
off-site
partially
yes
yes, but
beyond scope
of emergency
action
Consistency
with yes
remedial
activities
overlap with
yes remedial
activities
Removal Action
An immediate removal action was approved for the site on April 15,
1983. EPA directed the overall clean-up effort with the assistance
of Federal, State, and local governmental authorities including: the U.S.
Coast Guard, the U.S. Public Health Service, the Centers for Disease
Control, the Washington Department of Ecology, and the City of Kent Fire
and Police Departments. The Coast Guard generally assisted EPA in overseeing
the clean-up contractor, directing site activities, providing site safety
monitoring, as well as administrative and cost control functions. The
Public Health Service and Centers for Disease Control provided public
health information and assistance. The Kent Fire and Police Departments
provided fire and security assistance. The removal action was actually
carried out as follows.
On April 15, 1983, EPA held a meeting to discuss cleanup capabilities
and to prepare a general contract for site response activities. On April
18, 1983, EPA began staging equipment for on-site work.
On April 19, 1983, EPA began the iitmediate removal action at the
site. Response activities included the following. EPA installed a
security fence, established a communication command post, and briefed
on-site personnel of the site safety plan. EPA began staging, overpacking,
sampling, and identifying contents of drums, testing tanks and surveying
surface impoundments for leaks or deterioration,, controlling surface
runoff, and conducting other site stabilization as well as air and soil
monitoring activities, EPA also began investigating options and developing
proposals for off-site disposal and/or recycling the site's hazardous
wastes.
-------
3-10
On May 6, 1983, the Partial Removal Option (Option 2) was selected
as the most cost-effective alternative for completing this removal action.
This option included removal and off-site disposal of drum and tank
wastes, paint sludges, as well as acid waste and other waste water from
lagoons. All other materials were stabilized on-site. Stabilization
activities included transferring contents from deteriorated containers to
lined tankers or suitable drums, constructing a contairment pit for
fertilizers, and constructing a berm to prevent off-site drainage of
substances remaining on site.
Project costs escalated dramatically due to high disposal costs. An
exemption to the $1 million limit imposed by CERCLA was approved on May
7, 1983, and the project ceiling was raised to $1.6 million. Actual
clean-up costs were approximately $1.4 million. The action was completed
on July 1, 1983.
Enforcement
EPA has initiated a variety of actions (e.g. administrative compliance
orders under both CERCLA and RCRA) over the past few years to compel the
responsible party to conduct appropriate hazardous waste management and
clean-up actions. As indicated, the responsible party failed to comply
with EPA's order to conduct the inwediate removal action. EPA plans to
initiate cost recovery action to recover any CERCLA funds (for both
removal and remedial costs) that have been used to finance site clean-up
actions.
BROWN'S FIELD SITE
Site Background
This site is an abandoned hazardous waste site located near the
Brown's Field Airport in Chula Vista, California. The site contained 265
drums of hazardous materials that were deposited on site in September
1982. These drums contained a variety of hazardous substancs including
acetic acid, hydrogen cyanide, and styrene. A truck enroute to a chemical
recycling facility in Tijuana, Mexico deposited the material at the site
after failing to clear customs at the United States/ Mexican border.
After failing to gain private party cooperation in cleaning-up this site,
State officials contacted EPA for assistance on June 23, 1983. EPA
initiated an immediate removal action on July 22, 1983.
Nature of the Threat
The 265 druns deposited at the site were in various stages of deteri-
oration, threatening to release hazardous substances into the environment.
Many of the substances contained in these drums are designated hazardous
substances which pose a significant threat to human health and the
environment.
-------
3-11
The nature of the threat at this site was direct contact of hazardous
substances to humans, a fire and explosion hazard, as well as soil and
air contamination. These threats existed due to the deteriorated condition
and improper storage of hazardous substances at the site.
The most significant threat to human health was from fire, explosion,
and/or the release of toxic gases and vapors. Industry and airport
personnel as well as approximately lOOO people who resided within three
miles of the site were potentially threatened by this situation;. The
most significant environmental threat resulted from the potential con-
tanination of area plant and animal life as well as nearby irrigation
wells.
Response Options
EPA determined that aij ptoediate removal action was necessary to
eliminate the threat at tns site. The following summarizes three options
considered to mitigate or stabilize the threat at the site:
Option 1; Limited Stabilization' On-site
0 Provide 24 hour site security;
0 Pence site to prevent direct contact;
0 Provide berms to prevent runoff; and
0 Stage and segregate drums for on-site
storage.
Option 2: Stabilization On-site
0 Provide 24 hour site security;
0 Pence site to prevent direct contact;
0 Provide berms to prevent runoff;
0 Overpack leaking and deteriorated
drums; and
0 Stage and segregate drums for on-site
storage.
Option 3; Off-site Disposal
0 Provide 24 hour site security;
0 Fence site to prevent direct contact;
0 Provide berms to prevent runoff;
0 Overpack leaking and deteriorated
drums;
0 Stage and segregate drums for
off-site disposal;
0 Remove and dispose of hazardous
substances; and
0 Remove and restore contaminated soil.
-------
3-12
Evaluation of Options;
EPA determined that the Off-site Disposal Option (Option
3) was the most cost-effective removal action for this site.
The following matrix summarizes the criteria EPA used to
determine the appropriate action at this site:
Task
Technically
feasibile
Estimated
cost
Time frame
Maintenance
after action
Other
Option 1
yes
$47,000
15 days
yes
local
concern
Option 2
yes
$57,000
15 days
yes
local
concern
Option 3
yes
$141,000
30 days
no
none
Removal Action
EPA managed the overall removal action with the assistance of the
U.S. Coast Guard, and the County of San Diego and the California Depart-
ment of Health Services. The Coast Guard generally assisted EPA in
overseeing site activities. State and local Health Services Departments
provided public health and environmental information. The following
summarizes how the removal action was actually carried out.
The County of San Diego and the State of California had inspected
and sampled site contents over a one year period beginning shortly after
the hazardous substances were deposited at the site. State and local
officials were unable to gain private party cooperation in cleaning up
this site. In addition, the State had insufficient funds to finance the
clean-up. As a result, the State notified EPA and requested Federal
assistance to clean-up the site on June 23, 1983.
EPA conducted a preliminary assessment of the site on June 25, 1983.
After concluding that the site presented an unacceptable threat to hunan
health and the environment, SPA notified the responsible party of the
site problem and requested private clean-up on June 28, 1983. After
failing to obtain a positive response from the responsible party, EPA
initiated an immediate removal action on July 22, 1983.
-------
3-13
EPA conducted the following activities in initiating this removal
action. EPA established 24 hour site security and constructed a security
fence to prevent direct contact by unauthorized persons; collected and
analyzed drum contents to determine the substances and their quantities;
sprayed a fire retardant and constructed a sand berm around the drum area
to prevent the spread of a potential fire; and initiated an investigation
for determining alternative plean.-up and disposal options.
To carry out actual clean-up activities, EPA overpacked, removed,
transported, and disposed of the 256 drums. EPA also conducted both on
and off-site soil and air sampling and monitorina to determine the extent
of environmental contamination. Soil samples indicated that hazardous
substances had contaminated some site areas, and EPA removed and disposed
of the soil accordingly.
This removal action «^s Cjqfnpleted August 17r 19P3. EPA oblioated
5164,273 for the action.
Enforcement
As indicated, the State qf California and EPA attempted but failed
to obtain responsible party clean~up of this site. The State of California
filed a suit against the responsible parties for removal of the drums and
civil penalties for violation of various California health and safety as
well as business and professional codes. SPA has initiated action to
recover costs of the removal action conducted at the site. This case
has been referred to the Department of Justice for court action.
HAMPTON CYLINTER SITE
Site Background
This site is a vacant lot in Hampton, Virginia that contained over
4500 improperly stored, le^ino;, and, deteriorated cylinders and drums.
The lot was improperly used as a storage site for a cylinder testing
facility. These cylinders, an$ drums contained a variety of hazardous
substances including acstv^fsftgr flouromethane, propane, and trichloro-
ethylene. The situation ^BJSI tf?£& brought to the attention of Hampton
City officials on June ft, 1983. BPA initiated an immediate removal
action on June, 16, 1983.
Natureof Threat
The improper storage. ajKl deteriorated condition of the cylinders
and drums posed a direct and immediate threat to human health and the
environment. The substances identified above as well as others in the
containers are flammable, explosive, or acutely toxic when inhaled. A
threat to human health and the environment existed via the potential for
fire, explosion, and inhalation from cylinder releases.
-------
3-14
The existence of flammable and toxic materials at this site posed an
imminent threat to approximately 1000 people who lived or worked within
1/4 mile of the site. Included within this 1/4 mile radius was a State
run school. The threat of this situation was intensified by high temperatures
which caused vapor releases from many of the cylinders. These releases
increased the potential for direct contact, fire or explosion.
Response Options
EPA determined that an immediate removal of all cylinders and drums
from the site was the only feasible option. This option was as follows:
0 Evacuate all persons within 1000 feet of
the site;
0 Arrange for 24 hour site security to
prevent direct contact by unauthorized
persons;
0 Sample cylinders and drums to identify con-
tents, determine extent of hazard, and
proper disposal options;
0 Overpack and stage cylinders and drums
according to hazard;
0 Segregate cylinders and drums by DOT
hazard class;
0 Destroy cylinders or drums if contents
cannot be identified;
0 Arrange for removal and off-site disposal;
and
0 Sample soil for contamination.
Removal Action
EPA managed the overall clean-up effort with the assistance of the
Federal Emergency Management Agency (FEMA), the U.S. Coast Guard, the
Virginia Office of Emergency and Energy Services (OES), the Virginia
Department of Health, the State Police, the State Fire Marshalls Office,
the Cities of Hampton and Newport News Police and Fire Departments and
Offices of Civil Preparedness, as well as the Merican Red Cross. FEMA
and the American Red Cross managed and carried out the temporary relocation
of nearby residents. The Coast Guard generally assisted EPA in overseeing
site activities. The various State and local entities assisted EPA in
matters pertaining to public health, as well as fire protection and
site security.
On June 9, 1983, the Hampton Fire Marshalls Office responded to a
complaint that cylinders were improperly stored on the site. The Fire
Marshalls Office issued a clean-up order to the site owner to clean-up
the site within 15 days. On June 13, 1983, the Fire Marshalls Office re-
sponded to another complaint that gas was being released from the cylinders
on this site. The Fire Marshall subsequently contacted an industrial
expert who expressed concern about the hazardous nature of the site.
-------
3-15
On June 15, 1983, specially trained personnel from the Fire Marshalls
Office conducted an investigation and subsequently contacted the State
Office of Emergency and Energy Services for assistance in determining the
nature of the threat created by this situation. OES conducted another
investigation that afternoon. On June 16, 1983, OES contacted EPA for
assistance.
EPA's Region III coordinator conducted a preliminary assessement on
June 16, 1983, and determined that Federal action under the Superfund
program was necessary to protect hunan health and the environment. The
State of Virginia was unable to initiate and maintain the appropriate
action but agreed to participate by providing technical assistance. The
responsible party was unavailable and had failed to comply with a previous
clean-up order. EPA then initiated an immediate removal of all cylinders
and drums.
The removal action was initiated on June 17, 1983. The Hampton
Police and Fire Departments secured the site to prevent entry by unauthorized
persons. EPA assisted in on-scene safety coordination. The Virginia
Office of Emergency Services began monitoring the site to determine the
public health impact. Representatives from the Coast Guard moved on-scene
to aid EPA. EPA's coordinator worked with City Emergency Services officials
to expedite telephone and electrical hookups to establish a site command
post.
EPA informed FEMA of the site situation and requested that they
undertake temporary relocation of approximately 75 people for a period of
5 to 7 days while work at the site took place. FEMA carried out the
evacuation with the assistance of the American Red Cross who provided
temporary housing facilities. The City of Hampton Fire Department provided
water for decontamination and cooling of cylinders, briefed the local
trauma center on potential health hazards, and arranged for emergency
transport of persons to medical facilities.
On June 18, 1983, EPA fully assessed the site to determine the extent
of the threat and contamination at this site. In addition, personnel were
briefed on general site clean-up procedures and the site safety plan was
drafted.
Between June 19 and June 2.5 the cylinders and drums were inspected and
their contents were analyzed. Once the contents were identified, they were
overpacked and staged acpordi-ng to the degree of hazard .they posed to human
health and the environment. Finally, the cylinders and drums were transported
to a temporary hazardous waste storage facility in North Carolina.
On June 25, 1983, the site was inspected to ensure that it no longer posed
a threat to human health and the environment, and the community evacuation
was suspended. All cylinders were deposited in the temporary storage
facility by June 27, 1983.
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3-16
After disposal in the temporary facility, EPA began developing cost-
effective disposal or recycling options for the cylinders. The cylinders
were relocated to a RCRA approved pecmanant facility for disposal and
recycling on September 21, 1983. The removal action was officially
completed on January 25, 1984. EPA obligated 297,100 for this removal
action.
Enforcement
EPA is pursuing cost-recovery action to recover CEPCLA funds used to
finance this removal action. EPA has referred this case to the Department
of Justice, which has filed an action under CERCLA section 107 to recover
these funds.
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4 .
The purpose of the .Superfund enforcement program is to secure responsible
party cleanup of releases and threatened releases wherever possible and to
recover the costs of Fund-financed response actions, Hnlike enforcement
programs under other statutes administered by EPA, CEFCLA enforcement does
not focus on compliance with a complex regulatory system based on standards
of environmental quality and human health. Instead, CERCLA establishes a
civil enforcement program to hold responsible parties liable for releases
or threatened releases of hazardous substances that may present substantial
danger to public health or welfare or the environment.
In addition to KPA's authority to order responsible party response
actions and to recover costs under sections 10 fi and 107 of CRPCLA,
EPA may also use its authority under the Resource Conservation and
Recovery Act to address releases of hazardous wastes: 1
0 For example, under section 3013, EPA can order owners
and opera tors of a site to conduct a remedial
investigation whenever the release of waste may present
a "substantial hazard to human health or the
environment." In an action taken under section 3013,
therefore, EPA is not required to establish "imminent
and substantial endangermen t ."
0 Section 7003 authorizes EPA to bring suit or take
other action as may be necessary to prevent endangermen t
from the "handling, storage, treatment, transportation
or disposal of any solid waste or hazardous waste."
Because this section is not tied to Subtitle C of the
Resource Conservation and Recovery Act, which defines
hazardous wastes to exclude petroleum and mining waste
releases, the CERCLA enforcement program may use section
7003 or civil action orders to abate threats from releases
of petroleum and mining wastes and other wastes not listed
as hazardous wastes under CFPCLA at Superfund sites.
firders under sections 3013 may only be issued to ovners and operators
of hazardous waste treatment, storage, or disposal facilities, however, and
thus are not appropriate in cases where EPA takes enforcement action against
other types of responsible parties.
Many of the early Superfund enforcement, cases dealt with violations of
the Resource Conservation and Recovery Act that occurred before CKRCLA's
passage.
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4-1
To indicate the broad enforcement authorities for addressing hazardous
substance releases, Exhibit 4-1 presents a 5-year summary of enforcement
settlements achieved under an administrative consent order, a consent
decree, or a consent aqreement. These settlements are categorized accordinq
to the laws and sections under which they were siqned. As the data indicate,
a larqe proportion of early enforcement settlements were under the authority
of the Resource Conservation and Recovery Act. As the Superfund program
evolved, however, an increasing number of settlements have been the result
of CERCLA section 106 and 107 actions.
EXHIBIT 4-1
STATUTORY AUTHORITY OF S17PERFUNP ENFORCEMENT SETTLEMENTS3
Statute Section 1980
RCRA 113013 0
RCRA IIVOOS13 4
CERCLA 1I106C o
CERCLA 11107 0
CERCLA 1(106/107^ 0
1981
0
9
0
0
0
FISCAL YEAR
1982 1983
5
15
3
0
2
9
4
11
2
8
198-db
10
6
39
8
5
Total
24
38
53
10'
15
SOURCE: Enforcement Case Manaqement System, Office of Solid Waste and
Emerqency Response
a This table does not enumerate all settlements achieved, because a
small number of settlements at Superfund sites have been reached under the
authorities of other environmental statutes, such as the Toxic Substances
Control Act and the Safe Drinkinq Water Act.
b Includes those cases taken under authorities of Sections 7003/3013.
c Includes those cases taken under authorities of Sections 106/7003 and
Sections 106/3013 settlements.
d Includes those cases taken under authorities of Sections 106/107/7003
and Sections 106/107/3013 settlements.
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4-2
Recent enforcement policy emphasizes the use of administrative orders
and civil actions pursuant to CERCLA section 106 to secure "up front"
private party response as well as the recovery under section 107 of previously
expended Federal funds to maximize environmental results. The appropriate
use of section 106 authorities to compel private party action is preferable
to an exclusive reliance on cost recovery for the following reasons:2
0 It is consistent with the intent of Congress that
responsible parties should be compelled to clean up the
hazards they create, whenever feasible;
0 It provides the only mechanism for cleaning up sites
when use of the Fund is prohibited (e.g., when states
cannot meet their statutory cost-share obligations);
0 It may provide for additional protection of the public
health or environment at specific sites since
enforcement remedies can be more extensive than Fund-
financed ones since enforcement remedies are exempt
from the Fund-balancing requirement of CERCLA section
104(c)(4).
0 Successful "up front" enforcement actions encourage
additional settlements; and
0 Successful "up front" enforcement preserves Fund
monies for use at other sites where no financially
capable responsible parties are identified.
COORDINATION WCTH REOTVAL AND REMEDIAL PROGRAMS
At each hazardous waste site, EPA must initially decide whether
to exercise its enforcement authority bo compel cleanup, or to conduct a
Fund-financed remedial or removal action. Conditions at the site and the
likelihood of securing responsible party cleanup are the two important
factors in determining how to proceed at a site. EPA must ensure that its
decisions are consistent with the overall objective of protecting public
health and welfare and the environment. Coordination of enforcement and
Fund-financed action involves:
8 Identifying sites that are appropriate for enforcement
actions;
0 Determining the point at which enforcement efforts
should cease and a Fund-financed action should be
initiated; and
2 "CERCLA Enforcement and Compliance Strategy" (rraft), Office of Waste
Programs Enforcement, January 12, 1984.
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4-3
0 Minimizing the overlap of enforcement and program
activities at a site.
Qoals and Related Policies;
Initially, EPA implemented a system whereby sites with financially
capable potentially responsible parties were managed first by the enforcement
program. Because most sites have at least one identifiable potentially
responsible party with some ability to pay for cleanup, most sites beqan as
enforcement sites. "tie removal and remedial offices would address sites only
if they were emergencies or if no financially viable potentially responsible
parties could be found. Otherwise, the signature of the Assistant Admini-
strator of the (now reorganized) Office of Legal and Enforcement Counsel
was reguired for a site to be referred to the program offices.
In 1982, EPA experimented with a "dual-track" system whereby
Fund-financed remedial planning activities could be conducted at the same
time that enforcement staff negotiated with responsible parties for financing
of subseguent phases of work at the site. Ttie dual-track system too often
resulted in duplication of efforts between program and enforcement staff.
The Site Classification System which went into effect in June 1983,
replaced the dual-track system for remedial response sites.3 This system
divides sites into categories depending upon such factors as the strength and
likelihood of success of the enforcement case, the need for prompt response
at the site, and the ability of states to provide the necessary statutory
assurances for Fund-financed activity to begin. Specifically:
0 Category I sites are sites where, in general, only
Fund-financed response will be conducted. Most of the
sites in this category are sites where no financially
capable potentially responsible parties have been
identified. As of September 30, 1984, 79 sites were
classified as Fund-lead sites.
° Category II sites are enforcement-lead sites. Sites
are placed in this category if the case against respon-
sible parties is strong and there is no immediate need
to begin remedial activity at the site. Negotiations
are held with responsible parties and, if no settlement
is reached, RPA must use civil or administrative
authorities under CEPCLA section 106{a). The remedial
investigation and feasibility study may be conducted by
EPA using Fund monies, or by the potentially responsible
party if the party agrees to follow EPA's scope of
3 See "Guidance for Selecting Enforcement Action on Fund-financed
Response at Sites Under the Superfund Law", (Draft) Office of Emergency and
Remedial Response, June 8, 1983.
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work. Generally, no Fund monies should f"*e expended for
response activities after these studies are completed
for Category II sites. In September 19R4, 175 sites were
cateqorized as Federal-lead enforcement sites.
0 Category III sites are sites where there is only
limited time available for neqotiations before response
actions must benin. Neaotiations are limited to 60-120
days after EPA (or the potentially responsible party, in
some cases) conducts the remedial investiqation and
feasibility study. If no aoreenent is reached durincr
neqotiations, EPA may attempt to compel the potentially
responsible party to clean up the site by issuina a
unilateral administrative order. If the party refuses
to comply with the order, EPA proceeds with a
Fund-financed remedial action and seeks to recover
response costs and treble damaqes, if appropriate.
Accordinq to September 19R4 data, ISO sites were listed as
Cateqory III sites.
0 Category IV sites are State-lead enforcement sites
where EPA's role is limited to oversight and technical
assistance. State-lead enforcement sites numbered 136
in September 1984.4
EPA routinely monitors activities at sites included in the first three
categories. Because EPA's role is limited for Category IV sites, less is
known about the enforcement progress at these sites.
Ihe role of enforcement in removal actions depends prunarily on the
time available before site actions must begin. In emergencies, enforcement
efforts, if conducted at all, are aimed at securing immediate, voluntary
action by responsible parties, usually the owner or operator of the site.
In most emergency situations, however, enforcement is limited to cost
recovery.
At many removal sites, there may be a week or less between the time EPA
decides to undertake removal actions and the time site work must begin. In
such cases, enforcement activities are to be conducted under strict time
schedules. If private parties do not undertake response, EPA proceeds with
a Fund-financed removal.
In addition to sites classified in the four categories, there were 6
unclassified sites as of September 19R4.
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4-5
Major Accomplishments
The primary effect of the Site Classification System has been to ensure
that the enforcement and the Superfund program offices have clearly defined
responsibilities for a large number of separate sites. Coordination problems
still arise when responsible parties at Fund-lead remedial sites decide
suddenly that they wish to settle, or when enforcement efforts fail
unexpectedly.
For the most part, however, coordination seems bo be improved under the
Rite Classification System and under the new removal coordination procedures.
Further examination of specific cases, especially Category III sites which
require the greatest coordination, might be valuable in assessing the need for
refinements to the system, in addition, since FPA's oversight of State-
lead enforcement sites is very limited, progress at those sites is unclear.
NOTIFICATION OF POTENTIALLY RESPONSIBLE PARTIES AND NEGOTIATION
Notification
Notification in the enforcement program refers to the procedures used
by EPA to inform parties of their potential liabilities for the costs of
responding to releases of hazardous substances and for natural resource
damages. Notification in essence sets the stage for negotiations to secure
agreement with responsible parties or to initiate unilateral administrative
or civil action.
EPA policy requires notification of potentially responsible parties on the
basis of CERCLA section 104(a-)(l), which authorizes the President to conduct
response actions ... "unless the President determines that such removal and
remedial action will be done properly by the owner and operator of the
vessel or facility fron which the release or threat of release emanates, or
by any other responsible party." Written or verbal notice is the first
step in determining whether a potentially responsible party is willing and
financially capable of undertaking proper response.
The first enforcement activity undertaken at hazardous substance release
sites is the attempt to identify potentially responsible parties. Regional
EPA staff usually examine Federal, State, and local government and private
party records to identify past and present owners and operators of facilities
at the site and generators and transporters of substances discovered at the
site, states also conduct responsible party searches as part of the site
investigation activities.
Once the Regional staff identify parties who may be potentially liable
under CERCLA for response costs and damages to natural resources, they then
inform them of their potential liabilities and of opportunities for partici-
pating in planned response actions. Where a remedial response is required,
this initial contact takes the form of a "notice letter." For immediate
removals where more prompt response is necessary, EPA may contact potentially
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4-6
responsible parties by telephone. In emergencies, such as a fire or potential
explosion, EPA may not have time to notify potentially responsible parties
at all. In general, EPA staff notifies potentially responsible parties
well enough in advance of planned site actions to allow recipients to
contact EPA to discuss their participation in such actions or in future
cleanup negotiations. Since the beginning of the Superfund program, however,
the timing, content, and objectives of notice letters have varied in response
to policy shifts regarding the participation of potentially responsible
parties in response actions.
Goals and Related Policies
The goal of the notification process is to establish communications
between EPA and potentially responsible parties. Therefore, EPA's approach
to notification has paralleled the Agency's approach to negotiating over
reponse actions. Initially, the Agency was willing to negotiate separately
for the planning and implementation phases of remedial- action, and notice
was sent at each phase. Notice letters were essentially "open ended" with
no set time limits for response. In February 1982, EPA identified potentially
responsible parties for all 115 sites on the interim priorities list and .
issued a mass mailing of 707 form letters to those parties. Two months
later, only seven companies had responded with a willingness to negotiate .5
Most of the respondents asked EPA to demonstrate their responsibility for
the release in question.
In May 1983, the Agency adopted a modified approach, setting out
stricter terms for responsible party participation in response activities.
Notice was generally sent concurrently with Fund-financed planning efforts.
In addition, EPA increasingly used notice letters to request information
under the authorities of CEPCLA section 104(e) and PCRA section 3007(a) />
There were two drawbacks to this approach. Some responsible parties wanted
an opportunity to conduct or participate in the remedial investigation and
feasibility study. Also, parties were reluctant to accept the conclusions
in the feasibility stiriy and assime responsibility for the cleanup because
their views were not reflected in the study.
In the spring of 1984, EPA further modified its approach to notification.
EPA will make available a list of sites which are scheduled for remedial
investigations/feasibility stulies and invite potentially responsible parties
to participate in or conduct the remedial planning. EPA will then send
notice letters to potentially responsible parties for sites on the list and
5 "Hazardous Vfeste Enforcement," Report for the Subcommittee on Oversight
and Investigation, Committee on Energy and Comerce, U.S House of
Rspresentatives, December 1982.
fi Notice letters were sent under section 104(e) of CEPCLA and section
30(l7(a) of the Resource Conservation and Recovery Act. These provisions
authorize the Administrator to require handlers of hazardous wastes
and substances to provide certain information about the origin and
disposition of substances at the site. EPA then uses this information
to identify additional responsible parties and to prepare for negotiations
or litigation.
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4-7
inform them of planned response actions, their potential liabilities, and
opportunities t-o discuss their participation in or conduct of those activities.
These letters are sent at least fin days before the start of a remedial
investigation or as early as possible before a removal to allow time for
negotiation, before the action gets under way. Parties may conduct
the activities if they agree to follow the requirements laid out by EPA.7
As of September 30, 19R4, EPA had issued approximately 5,900 notice
letters involving 227 sites.
Negotiation
Throughout the history of Superfund, KPA has acknowledged the importance
of negotiations in securing responsible party cleanup of hazardous waste
sites. However, EPA has increasingly recognized the potency of its other
enforcement tools, such as the authority to issue unilateral administrative
orders or to initiate legal action. . .
As part of its enforcement program, EPA will undertake negotiations with
parties identified to be potentially responsible for the release of hazardous
substances. These negotiations provide an opportunity for potentially
responsible parties to come to a settlement with EPA concerning their role
in the investigation, selection, design, and implementation of site cleanup.
Negotiations, as discussed here are generally conducted only for remedial
response sites. EPA and potentially responsible parties may follow a
similar but much shorter course of negotiations before certain removal
actions when there is time before site work must begin.
Ordinarily, before negotiations are initiated, a case development team
of Regional and Headquarters technical and legal enforcement staff draws up
a draft enforcement document. For remedial negotiations conducted after
remedial planning, this draft incorporates the technical information and
suggested remedy of the remedial investigation and feasibility study. This
draft document, generally in the form of an administrative order or consent
decree, is not final, but details the specific technical issues and proposed
terms of settlement that then become the substance of the negotiations.
In cases where there are multiple parties potentially responsible for
a site, EPA will not conduct individual negotiations, hut instead expects
the parties to organize into a negotiating team, which will confer with EPA
as a single entity. For all cases, there is a limit en the number of days
"Participation of Potentially Responsible Parties in Development of
Remedial Investigations and Feasibility Studies under CEPCLA," Memo-
randum from lee Thomas, Assistant Administrator for Solid frfeste and
Emergency Response, and Courtney Price, Assistant Administrator for
Enforcement and Compliance Monitoring, to Regional Administrators
(March 20, 19R4) . This is referred to as the "March 19R4 Thomas/Price
RI/FS Memo," in the remainder of this report. "CERCLA Notice letters,"
JVaf t Guidance, Office of Waste Programs Enforcement and Office of
Enforcement Counsel-Waste, U.S. EPA (April 1984) .
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4-8
allowed for discussion. If negotiations will reouire more than 60 days,
the approval of EPA Headquarters is necessary. As a matter of current
policy/ negotiations should not exceed 120 days; furthermore, EPA can end
negotiations at any point between 60-120 days, if it judges that appropriate
progress is not being made.
Negotiations in which EPA and the potentially responsible parties agree
to the scope and terms of the remedy have generally resulted in a negotiated
agreement, a consent administrative order, or a consent decree. A negotiated
agreement, the eguivalent of a written "handshake", is the least binding of
the three settlements and, therefore, difficult to enforce in court, EPA
has not used this agreement since 1982. A consent administrative order
issued pursuant to CERCLA section 106 is a written agreement signed by EPA
and potentially responsible parties specifying the actions to be taken by
the parties. A party who fails without sufficient cause to comply with a
consent administrative order may be sued by EPA under CERCLA section 107
for up to three times the costs of response made necessary by such non-
compliance. CERCLA does not authorize treble damage penalties for failure
to comply with consent decrees.
A consent decree filed by the Department of Justice is the most formal of
the three types of settlements. The Department must first file a complaint in
Federal district court and the consent decree must be signed by a judge. The
issuance of a consent decree does not necessarily mean that the relationship
between EPA and the responsible parties during negotiations has been hostile.
EPA encourages settlement by consent decree as opposed to consent order
because a consent decree is enforceable by the Federal district court.
Consent decrees are especially encouraged when the number of responsible
parties is large or the terms of settlement complex.
EPA is developing a policy on public participation in enforcement
actions that will provide for public comment on consent administrative
orders. In the case of judicial action (i.e., consent decrees), the Depart-
ment of Justice usually conducts a 30-day public comment period after the
decree is signed. Consent administrative orders or consent decrees may be
amended or modified on the basis of comments received. However, the public
is not allowed to participate directly in the negotiations. While the
discussions between EPA and potentially responsible parties are in progress,
only a limited amount of "generic" information about the negotiating process
may be released. EPA is currently developing a policy that would reguire
public comment and a responsiveness summary on the remedial investigation/
feasibility study, before negotiations get under way. EPA may involve
public representatives in meetings with responsible parties under carefully
defined circumstances.
When negotiations are unsuccessful, and no settlement is reached, EPA may
issue a unilateral administrative order, initiate (or continue) civil action
under CERCLA section 106, or undertake a Fund-financed cleanup followed by
cost recovery efforts.
Since the passage of CERCLA, EPA has developed guidelines for the
negotiating process to make the discussions as productive and conclusive as
possible. EPA generally will not conduct discussions with parties who
offer to settle for less than 80 percent of the cleanup costs. All offers
to settle for less than 100 percent of the costs of cleanup must be approved
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4-9
by EPA Headquarter s.R Because of site-specific issues, RPA cannot standardize
the format followed in negotiations, hut must allow each discussion with
potentially responsible parties to follow its own course within the broad
parameters defined by RPA.
Goals and Pelated Policies
Since the beginning of the Superfund program, the goal of negotiations has
been to secure privately managed or financed cleanup of hazardous substance
releases. Negotiations further seek to docunent the terms of settlement
with responsible parties in a written agreement (e.g., a consent order or
decree) .
Though the goals of negotiation have not changed during the history of
CEFCLA, the way negotiations have been implemented and their role in the
overall enforcement program have gone through several distinct phases.
Initially, EPA's approach was to seek an agreement with responsible
parties prior to recourse to the Fund or litigation.9 Under this initial
policy, RPA was willing to segment negotiations. Each phase of a site
response was discussed separately, before the remedial investigation and
feasibility study and again later before remedial design, and later still
before implementation. As long as there was a possibility that action by a
potentially responsible party might forestall or prevent the need for
drawing upon the Fund, RPA was willing to negotiate.
There were several problems with this approach. Negotiations before
remedial planning were often protracted and ill-defined, because neither party
to the discussions could be certain about the nature and costs of the remedy.
Negotiations over the remedial investigation and feasibility study were
often splintered into issues of specific detail: where and how to sample
for contamination, the methods of detection, thresholds of detection, etc.
Remedial investigations and feasibility studies that were undertaken by
responsible parties were often inadequate, in part because guidelines for
the studies had not yet been developed. Finally, as a result of these
problems, necessary response actions were delayed.
The "dual-track" strategy of concurrent enforcement and Fund-lead
action, introduced in 1982, was intended to deal with sane of these problems.
The advantage of this strategy — a more promptly initiated Fund response
— was more than offset by the same disadvantages associated with the
"Interim Hazardous Waste Case Settlement Policy/1 Memorandum from Lee
Thomas and Courtney Price to Regional Administrators, Regional
Counsels, and Regional Iteste Division Directors (undated) .
"Huidelines for Using the Imminent Hazard, Enforcement and Emergency
Response Authorities of Superfund and Other Statutes" (47 Federal
Ftegister 20664) .
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4-10
with the earlier policy. The dual-track strategy also introduced a new
problem: duplication of effort at the same site by the program and enforcement
personnel.
A third, and current, phase in the evolution of enforcement negotiations
began in early 1983, when the EPA adopted the Site Classification System.
Sites are assigned a provisional classification prior to remedial planning,
and then a final classification once the feasibility study has been completed.
EPA intended that the Site Classification Sytem would clarify the role of
enforcement actions and negotiations in the overall response process.
By determining whether a site meets the criteria necessary for a
Category II site, EPA identifies in advance whether or not the remedy for a
site could be negotiated successfully or, failing that, enforced successfully
using section 106 authorities. The classification procedure represents a
distinct change from an earlier period when negotiations were often initiated
with inadequate case information, and few clear expectations as to where
the talks might lead.
Another policy change in the role of negotiations concerns EPA's
willingness to bargain with potentially responsible parties about their
role during remedial planning. In the first years of Superfund, EPA met
with potentially responsible parties to negotiate a privately managed
remedial investigation and feasibility study. Subseguently, EPA allowed
private party participation in remedial planning only if they were willing
to make a prior commitment to conduct the remedy selected by EPA. Current
EPA policy permits potentially responsible parties to conduct the remedial
investigation and feasibility study if they agree to follow certain
reguirements established by EPA.1° However, EPA will not permit significant
negotiations over the scope of work.
As discussed above, responsible parties will have an opportunity to
conduct the remedial investigation for those NPL sites slated for remedial
investigations and feasibility studies in the current fiscal year. However,
agreement must be reached by the scheduled start date for Fund-financed
planning. Furthermore, potentially responsible parties must agree to
organize themselves to conduct the remedial investigation and feasibility
study, and must follow the technical procedures for the study that EPA is
currently preparing. The procedures should be documented in some type of
administrative order or consent dcree. This prospective policy becomes
effective when the remedial investigation and feasibility study guidance
manuals are issued.
For any NPL site not on the Remedial Accomplishments Plan, potentially
responsible parties may conduct the remedial planning studies only if they
further agree to design and conduct the remedy stipulated by EPA. Under
this policy, EPA hopes to eliminate the need for further negotiations at
such sites over the remedial design and implementation. Resources thus
freed will be used instead to supervise the privately conducted remedial
investigation and feasibility study.
10
Thomas/Price Remedial Investigation and Feasibility Study Memorandum.
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4-11
Major Accctnplishnents
Negotiations have been increasinqly successful over the past two years in
promtinq settlements with responsible parties. Forty-six settlements were
achieved under administrative consent orders in FY 84; this compares to 20
administrative consent orders in FY 83, and nine in FY 82. Settlements
reached under consent decrees have increased somewhat. In FY84, IP consent
decrees were signed; in FY83 and FY82, the number was 15 and 20 respectively.
Exhibit 4-2 depicts the number of administrative consent orders and consent
decrees siqned during each of the past four fiscal years.
EPA has begun to increase enforcement actions at removal sites and is
attempting to increase the number of negotiated orders issued for removal
actions. This policy was initiated in the autumn of 1^83, and was recently
formalized.I1 The data on settlements indicate that the policy is taking hold:
for FY 84, 17 consent orders and one consent decree were siqned for removal
actions. This number corrpares with a total of four negotiated settlements
for removal actions in FY 83, four in FY 82, and two in FY 81.
In the case of privately-conducted remedial investigations and
feasibility studies, the settlement data also reflect the recent policy
decision to permit the involvement of responsible parties in resnedial
planning. Exhibit 4-3 shows the number of negotiated settlements which
stipulated remedial planning by responsible parties during the four-year
history or Superfund.
The dollar-value of negotiated remedies has also increased markedly
since FY 81. From, FY 81 to FY 82, the value of settlements declined from
$53 to $16 million. In FY 83, however, settlements values increased to
over $95 million. Over 50 percent of this amount was accounted for by two
settlements achieved under consent decrees: $24 million for a total remedial
cleanup of the Olin Triana site, and $24.5 million for a total reinedial
cleanup of the Velsicol site. .Settlement amounts for FY 84 increased $50.3
million over amounts for FY83: again, two settlements in particular were
responsible for a large proportion of FY 84's dollar total (settlement at
the Hooker Chemical site resulted in a $45 million cleanup, while a reinedial
action undertaken by consent decree at Petro Processors in Baton Rouge was
valued at $50 million). Exhibit 4-4 tabulates the dollar amounts of
negotiated settlements over the past four fiscal years.
In general, negotiating activity has incrased considerably over the
past two years, and recent policy changes are having a positive impact in
terms of the number and kinds of settlements achieved. The success of
negotiations is partially related to the perceptions responsible parties
have that EPA will use its strong civil and administrative enfrocement
authorities if negotiations are not proceeding toward a desirable settlement.
As discussed in the following sections, EPA increasingly has demonstrated
a willingness to use these authorities and this may account to some degree,
for the rise in negotiated settlements. EPA has also recently issued an interim
"Issuance of Administrative Orders for Immediate Removal Actions,"
Memorandum from Lee Thcmas, Assistant Administrator for Solid Waste
and Emergency Response, to Regional Administrators, Regional Counsels,
and Regional Division Directors, February 21, 1984.
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4-12
EXHIBIT 4-3
REMEDIAL INVTEPTIGATIONS/FEASIRILITV STUDIES (RI/FS
CQNpncTED BY RESPONSIBLE PARTIES
FISCAL VEAR
19fll 1982 1983 1984
RI/PS 2 2 4 17
SOURCE: Enforcement Case Management System, Office of Waste Programs
Enforcement.
EXHIBIT 4-4
VALUE OF SETTLEMEMTs (in thousands of dollars)
(COST RECOVERIES MCTF INCUTPED)
FISCAL YEAR
1980 1981 1982 1983 1984 Ibtal
&3ministrat ive
Consent Orders $500 $9,650 $27,200 $23,670 $ 60,020
Consent Decrees $800 52,784 6,208 67,965 122,835 $250,592
TOTAL $800 $53,284 $15,858 $95,165 $145,505 $310,612
ROfTRCE: Enforcement Case Management System, Office of Solid Waste and
Emergency Response.
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4-13
case settlement policy 12 wich seeks to define more precisely the goals of
negotiation, acceptable negotiatina terms, and the circumstances in which
litigation is the preferred alternative. While these definitions may limit
the role of neqotiations within the overall context of enforcement activity,
they may also serve to focus the negotiating process, making it a more
powerful enforcement tool.
CIVIL LITIGATION
Description of Activity
Under certain circumstances, EPA may decide to initiate civil action
against potentially responsible parties under CERCLA section 106. Fuch
action may be appropriate when parties have demonstrated during negotiations
that they are unwilling to accept their liability for necessary cleanup.
Negotiations may or may not precede the decision to initiate a section lOfi
action, however. Further grounds for civil action might be the failure of
parties to cease voluntarily from conducting activities that may endanger
public health or welfare or the environment.
Litigation reguires that the Department of Justice file a complaint in
Federal District Court. In order to file and successfully prosecute a
complaint, EPA and the Department of Justice must, at a minimum, have
evidence to show the following:
0 There must be an actual or threatened release of a
"hazardous substance" as defined in section 101(14) of CERCLA;
0 EPA must establish that the actual or threatened release may
present "an imminent or substantial endangerment to public
health or welfare or the environment-"13
0 The actual or threatened release must be from a "facility"
as defined in CERCLA section 101(9); and
0 The liability of responsible parties for the release
must be clearly documented.
Additionally, EPA must thoroughly document the nature of the contamination
problems at the site as justification for the reguired remedy and respond
to issues raised by the defendant.
12 "Interim Hazardous Waste Case Settlement Policy, "Memorandum from Lee
Thomas and Courtney Price to Regional Administrators, Regional Counsels,
and Regional Waste Division Directors.
13 EPA conducts an endangerment assessment to establish the existence and
nature of the "imninent and substantial endangerment." See EPA's draft
"Endangerment Assessment Guidance", Memorandum from Lee Thomas, Assistant
Administrator for Solid Waste and Emergency Response, to Regional
Administrators, April 1984.
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Before decidinq whether to refer a case to the Department of Justice for
filing, EPA must also determine if the specified site response is needed
shortly, or can be safely delayed without aggravating the "imminent and
substantial endanqerment" to public health or welfare or the environment.
When site response must be undertaken promptly, FPA will choose first to
initiate a Fund response, and then later to sue the responsible parties to
recover Fund expenditures,
The Department of Justice, as attorney for the Federal novernment, usually
conducts the trial and related litiqation. EPA provides technical support to
the Department during the litioation process. EPA will also participate in
negotiations with responsible parties after a complaint has been filed by
the Department. Often, f ilinq a complaint may prompt responsible parties
to negotiate a settlement before or even during the trial itself. Settlement
agreements reached after a complaint has been filed by the Department of
Justice are formalized in a consent decree signed by EPA, the Department,
the responsible parties, and a judge. 14
Litigated cases, however, may proceed to a iudicial decision because
no negotiated settlement between EPA and responsible parties can be reached.
In evaluating whether to accept settlement offers, EPA may consider whether
the case would establish an important legal precedent.
EXHIBIT 4-S
MENTS POT? REMEDIAL AND PKMOVAL ACTIONS a
FISCAL YFAR
19P1 1982 19R3 19R4
Remedial Actions
All Settlements 9 23 27 S2
Settlements at NPL Sites a 12 22 3*
Removal Actions
All Settlements 2 4 4 18
Settlements at NPL Sites 0 2 3 10
a Some settlements were reached which stipulated the performance of
both a removal and remedial action, and are therefore counted in both
categories. There was one such settlement in FYfll; two in FYR2; none in
FYR3; and 11 in FYR4.
Source: Enforcement Case Management System, office of Solid Waste and
Emergency Response.
A consent decree, however, does not automatically indicate that the
case is a litigated case. As noted in the text, EPA and/or responsible parties
may choose to formalize a negotiated settlement in a consent decree before
a case is filed by, or even referred to, the Department of Justice. In
such instances, consent decrees are lodged concurrently with the filing of
the complaint itself.
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decision to litigate is influenced by a number of pragmatic
considerations. Civil action is generally an expensive activity, both in
terms of tine and resources; therefore, even a well-documented, clear-cut case
of responsible party liability may not be worth the expense, if the issue in
dispute is relatively insignificant, resource limitations will also mean that
cases of potential value as precedents may be given higher priority.
Goals and Related Policies
Civil litigation under CERCIA section 106(a) may serve one or more of the
following objectives:
0 To seek and obtain a judicial decision, or to induce
responsible parties to sign a consent decree, corrpellinq
responsible parties to conduct site cleanup;
0 Ib provide incentives for responsible
parties in other cases to settle with'EPA; and
0 To establish important legal precedents for ongoing
and future cases.
The goals of litigation have remained essentially the same throughout the
history of Superfund, though EPA's ability and willingness to use litigation
to acccnplish these goals have changed over time. EPA policies during the
past 1ft months have reflected a willingness to litigate as a means of
securing responsible party cleanup or to establish important legal precedents.
Major Accomplishments
A number of factors have influenced EPA'S efforts to litigate Superfund cases.
Preparation of evidence necessary to prove Superfund cases has been both
costly and time consuming and EPA has been hesitant to refer cases to the
Department of Justice without such documentation. For many cases, EPA's
documentation procedures have been insufficient to support prompt referral
to the Department of Justice. A major element of this documentation is the
endangerment assessment of the site and the technical justification for the
appropriate remedy. EPA's positon is that cases cannot be effectively
litigated unless a remedial investigation and feasibility study have been
performed. Fund monies for enforcement-lead remedial planning were first
allocated at the end of FY83. Twenty-three remedial investigations and
feasibility studies were initiated at enforcement-lead sites during that
year. Tn FY ft4, 3*> remedial investigations and feasibility studies were
initiated. For FY 85, 46 remedial investigations and feasibility studies
are targeted (35 for NPL sites, and 11 for non-NPL dioxin sites).
Because remedial investigations and feasibility studies may take up to
IB months to complete, there will be some lag time before the results of
these actions are reflected in litigation. Once the studies now underway
have been concluded, EPA expects the pace of litigation activity to
accelerate.
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The level of civil litigation activity has generally increased in the
past two years. Of the 106 cases referred to the Department of Justice
over the history of Superfund, 61 (or 58 percent) were referred in fiscal
years 1983 and 1984. A total of 72 cases have so far been filed in Federal
district court; of these, 48 cases (or 67 percent) have been filed in the
past two years. Exhibit 4-6 summarizes civil litigation activity from FYSl
through FY84.
EXRHIRIT 4-6
CERCLA FNPOPCFMENT CASE REFERRALS AND FILINGS3
FISCAL YEAR
1979-
1981b 1982 1983 1984 Total
Referrals to noj 24 21 28 33 106
Filings 21 3 27 21 72
a Referrals are cases that EPA has sent to the Department of Justice to be
considered for legal action. Pilings are those referred cases for which
DOJ has initiated formal legal action.
b Cumulative through FY81; cases prior to 1981 were initially filed under
the Resource Conservation and Recovery Act or the Clean Water Act, and
then amended to include CERCLA authority.
Source: OECM Consolidated Docket Tracking System
Given this delay, coupled with the fact that case referrals and filings
have only recently accelerated, the effectiveness of EPA's current litiga-
tion policies should become more apparent in the next two years. EPA is
confident that litigation can be pursued more vigorously in the future, now
that pre-litigation policies and procedures have been better defined.
Moreover, a number of judicial decisions have recently been handed down
that clarify important liability issues left unclear by the statute. These
precedent-setting decisions should allow future litigation to proceed more
smoothly and may induce potentially responsible parties to settle cases that
otherwise may have gone to trial.
For example, courts have in several cases upheld FPA's assertion that
responsible parties are strictly and jointly and severally liable for response
costs and natural resource damages, (see n.R. v. Price (July, 1983), O.S. v.
Ghent-Dyne (October, 1983), and U.S. v. A&F Materials (January, 1984)) These
issues of strict and joint and several liability had, until these decisions,
been a major impediment to productive negotiations and expeditious litigation.
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In addition to strict and -joint and several liability, EPA's
interpretation of the statute has been upheld on several other key issues.
(see e.g., U.S. v. Northeastern Pharmaceutical and Chemical Company (January
1984)). The courts have also held that the Government need not prove a
causal link between costs incurred for cleanup and a qiven generator's
waste, (see U.S. v. Wade (December, 1983) and U.S. v. South Carolina^
Recycling and Disposal, Inc. (February 1984)).
ADMINISTRATIVE ENFORCEMENT ACTIONS
Section 106(a) of CERCLA authorizes the President, after notice to the
affected state, to issue "such orders as may be necessary to protect public
health and welfare and the environment" whenever the President determines that
"there may be an imminent and substantial endangerment" because of an actual
or threatened release of a hazardous substance from a facility.
Willful violation, failure, or refusal to comply with an administrative
order issued pursuant to section 10fi(a) is punishable by a fine not exceeding
S5,000 for each day of the violation, failure, or refusal to comply. In
addition, recipients of an order that fail, without sufficient cause, to
provide proper response action pursuant to such an order may be sued by EPA
under the authority of CERCLA section 107(c)(3) for up to three times the
costs of response made necessary by such nonccmpliance. This broad admini-
strative authority granted by CERCLA section lOfi and the treble damages
provision of section 107(c)(3) make administrative orders one of the most
potent enforcement tools available to EPA under any environmental statute.
Regional Administrators may issue unilateral administrative orders if the
following conditions are met:
0 EPA must conduct an endangerment assessment to show
that an imminent and substantial endangerment may exist;
0 The release or threat of release must meet the CERCLA
definition of "release" (section 101(22)) and of
"hazardous substance" (section 101(14));
0 The release or threat of release must be from a
"facility" as defined in CERCLA section 101(9); and
0 EPA must provide prior notice to the affected State or
States that an administrative order will be issued.
Administrative orders are usually drafted and issued by the EPA Regional
Offices. Current policy reguires prior RPA Headguarters concurrence for
consent orders, but not for unilateral orders, rmilateral orders generally
contain the following provisions:
0 A statement of the imminent and substantial danger
pursuant to CERCLA section 106;
0 For removal actions, a statement of the risk of harm
under section 300.65 of the National Oil and Hazardous
Substances Contingency Plan;
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0 A statement explaining the liability of: the recipient
under CERCLA section 107 and the steps that must be
taken to comply with the order;
0 A mandatory timetable for performing and completing
the response, including the effective date of the order
(e.g., 72 hours for removals);
0 The recipient may contact EPA to reguest a conference on the
order.
0 EPA reserves the right to take action if site conditions
dictate such action and that such action in no way relieves.
the responsible parties of liability for the costs of such
action; and
0 A provision reguiring accurate record-keeping and
chain-of-custody procedures on the part of the recipient
and cooperation from any contractor hired by the
recipient to perform site work.
If the recipients agree to implement the order, the On-scene Coordinator
oversees compliance. In some cases, RPA and the potentially responsible
parities may agree to redraft a unilateral order and sign it as a consent
order. If the recipient does not agree to implement the order, EPA may,
in a remedial case, go to court to enforce the order or perform a Fund-
financed response and seek treble damages during cost recovery, if appro-
priate. For immediate removals, current policy provides for Fund-financed
response in the event of non-compliance.
Goals and Pelated Policies
Initial policy de-emphasized the use of unilateral administrative orders.
However, EPA issued guidance in September, 1983, urging Regional staff to
consider the use of administrative orders "in every case where compelling
enforcement authority is necessary."!5 This guidance establishes specific
criteria for Regional staff to consider in deciding whether to issue an
administrative order. Regional staff should issue administrative orders
if potentially responsible parties are likely to comply with the order, or
if EPA has a strong case for enforcing the order or for successfully suing
responsible parties for treble damages if the parties fail without sufficient
cause to comply with the order.
15 "Guidance Memorandum on the Use and Issuance of Administrative
Orders under Section 106{a) of CERCLA" (September », 1983).
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4-19
Additional quidance issued in February 19R4 further specifies the
criteria and procedures for issuincr unilateral administrative orders in
immediate removal actions. 16 The outdance memorandum emphasized that
one of EPA's primary enforcement qoals is to increase the use of administra-
tive orders for immediate removals: "Orders are particularly useful in
immediate removal situations, since they can be issued guickly, can require
discrete segments of work (e.g., surface cleanup) and carry the threat of
additional damages and penalties in the event on non-compliance." EPA
estimates that administrative orders may be appropriate for a "significant
percentage" of immediate removal situations.
After identifying responsible parties and notifying them of their
potential liabilities, reqional enforcement staff may consider issuinq a
unilateral order if there is at least a week before site work must begin, to
allow the recipients of the order to confer with RPA on the terms of the
order. In addition, unilateral orders for removal actions are generally
issued only if the number of potential hired by the recipient to perform
site work.
To speed up the issuance of administrative orders, EPA has redelegated
the reguired concurrence authority. Initially, Regional Administrators
were required to confer with the Assistant Administrator for Legal and
Enforcement Counsel and receive concurrence from the Assistant .administrator
for Solid Waste and Emergency Response before issuing an administrative
order. Delegations of authority approved in April 1984, however, allow
Reqional Administrators to authorize the issuance of unilateral administra-
tive orders in removal actions without prior concurrence from FPA headguarters,
Consent administrative orders still reguire advance concurrence fron the
Assistant Administrator for Solid Waste and Bnergency Response before
signing.
Major Accomplishments
Since EPA issued the September 19P3 guidance memorandum, the use of
administrative orders has risen sharply. In FY8<1, regions issued
R5 unilateral orders under CERCLA section 106. in FY83, 27 unilateral
orders were issued.
EPA has particularly stepped up the issuance of unilateral orders for
removal actions. Exhibit 4-7 shows the number of unilateral orders issued for
remedial and removal actions during FYR1 and FY82 and during each guarter of
FY83 and FY84. As the data indicate, a dramatic increase in the use of
unilateral orders for removals occurred in the second guarter of FY84,
corresponding to policy changes in the September and February guidance
documents.
gee "Issuance of Administrative Orders for Immediate Pemoval Actions,"
supra note 5.
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Of the 26 unilateral administrative orders issued before FY84,
responsible parties did not comply with eight. In FY84, potential
responsible parties have not complied with 32 of the 85 unilateral orders
issued, making a Fund-financed response necessary in each case. Twenty-five
of these 32 cases have involved non-compliance with an order for a removal
action. In some of these recent cases, EPA did not expect the responsible
parties to comply with an order; EPA nonetheless issued the unilateral
orders so that precedent-setting treble damage suits might be initiated.
EXHIBIT 4-7
UNILATERAL ADMINISTRATIVE ORDERS
FDR REMEDIAL AND REMOVAL ACTIONS
Fiscal Year 1981 1982 1983 1984
Quarter I II III IV I II III IV
Remedial Actions 0 3 0044 3 10 64
Removal Actions 0 0 0063 4 23 16 10
Remedial/Removal 0_ 1^ ! £ 1 2_ 1 _!•> _JL 1
Actions
TOTAL 0 4 1 0 12 9 8 38 24 15
Source: Enforcement Case -Management System, Office of Solid Waste and
Emergency Response
COST RECOVERY 17
EPA currently defines cost recoveries to include all payments or reim-
bursements to the Fund by responsible parties. A cost recovery therefore
includes both payments by responsible parties to the Fund to conduct a
cleanup response before the work is undertaken, as well as collections from
responsible parties for Fund monies already expended.
There are three elements to cost recovery efforts:
° Documentation. In addition to documenting all costs
incurred in a response action, EPA must demonstrate:
(a) that a release or threat of release of a hazardous
substance (as defined in CBRCLA sections 101(22) and
The 301(a)(l)(D) Study presents a record of EPA's cost-recovery for
expenditures from the Fund.
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101(14) existed; (b) the liability of the defendant for
the release or threat of release; and (c) the Federal
or State response actions taken were not inconsistent
with the National Contingency Plan.
° Issuance of a Demand Letter. EPA routinely issues a
letter to parties liable for response costs sunroarizing
the costs incurred and demanding payment for those costs.
0 Settlement with Responsible Parties. Responsible parties
may seek to negotiate a settlement with the EPA for cost
recovery or, failing that, EPA refers the case to the
Department of Justice for filing and subsequent litigation.
Negotiated settlements of filed cases are embodied in a
consent decree.
Goals and Related Policies
The objective of cost-recovery efforts has remained the same since the
passage of CERCLA: To documentand recover the maximum practicable amount
of money due to the Fund from responsible parties. EPA's May 1982 enforcement
guidelines stated:
When decision is made to employ the Fund for site
cleanup, every effort will be made. . . to recover
the Government funds expended, including referral
to the Department of Justice for collection action
where necessary.18
Although not an explicit policy, cost-recovery efforts during the
initial years of the program were considered part of negotiations for a
remedy. Cost-recovery agreements, if pursued, were generally embodied as
one part of broader settlement agreements or consent decrees.
Cost-recovery efforts have only in the last year received EPA's priority
attention. The major reason for this delay is that initial program policies
resulted in a slow rate of expenditure of Fund monies for non-emergency
releases. Rather than seeking cost-recovery for each segment of a Fund-
financed response, EPA in most instances chose to wait until the response
was entirely or substantially complete before contacting responsible parties
about cost recovery. Because remedial actions generally require as many as
three to four years to complete, EPA has only recently begun to initiate
cost-recovery action for the first Superfund-financed remedial actions.
Fund-financed removal actions druing the initial years of the Superfund
program were generally limited to emergency actions that required
relatively low expenditures from the Fund, so cost-recovery was not
emphasized.
18 49 FR 20666.
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In 1983, revised EPA policies increased the level of Fund-financed
removal and remedial activity. Under the Site Classification System,
necrotiations at certain remedial sites (Category III) are conducted under
strict time limits. If a settlement is not reached, remedial desiqn and
construction are conducted using Rind monies and enforcement efforts shift
to cost recovery. In addition, increased removal activity placed growing
demands on the Fund and provided greater impetus to cost recovery efforts.
EPA policy encourages responsible parties to negotiate a settlement
for cost recovery to avoid costly litigation. In such cases, agency
neootiation and settlement policy applies.
Major Accomplishments
Funds Recovered; As of September 1984, the Fund has been reimbursed
whollyor in part for CERCLA costs incurred in 33 cases for a total of
$6,fi41,196. During FY81, EPA recovered response costs at one site for
$30,000. In FY82, EPA made three cost recovery collections for a total of
$2,409,688. During FY83, EPA recovered response costs in 13 cases for a
total of $2,155,133. During F¥R4, EPA took 16 cost recovery actions for
a total of $2,046,375.
Documentation; During the second half of FY83, EPA formed a cost
recovery task group to establish more thorough documentation procedures and
to manage the rapidly increasing number of removal cases for which cost
recovery could be sought. In August 1983, EPA issued guidance on cost
recovery that describes:
0 Essential elements that the government may be called
upon to prove in a cost recovery action;
0 Hie assembly and maintenance of a file;
0 Examples of appropriate documentation for each element
of the cause of action;
0 Procedures for processing and negotiating cost
recovery claims; and
0 The mechanics of repayment of any recovery to the
Flind. 19
In addition to this document, EPA is currently developing more detailed
guidance on cost documentation procedures.
"Cost Recovery Actions Under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CEFCLA)", Office of Solid
Waste and Emergency Response and Office of Enforcement and Compliance
Monitoring, August 26, 1983.
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EPA is currently focusino its efforts on assembling and packaqinq the
necessary documentation for a priority list of sites made up mostly of
completed removal actions. This process has involved workinq with reqions
to identify priority sites, acquiring necessary supportinq documentation,
and assembling and totalling site-specific costs.
Although this work has improved the management of cost recovery actions,
some gaps remain in the quality of EPA's documentation process. The task
group has focused only on direct Fund expenditures. Recovery of indirect
(e.g., administrative, oversight, overhead) costs is more difficult and
will take additional time. EPA'S financial management office is currently
working on a system for tracking and documenting indirect costs.
Damand Letters; EPA routinely issues demand letters on cost recovery
actions. There has been, one case to date, where responsible parties have
agreed to reimburse the Fund after receipt of a demand letter.
Cost Recovery Litigation; As indicated, EPA has successfully recovered
CERCLA funds from responsible parties in 33 cases for a total of $6,641,196.
A significant number of additional cases are either currently in litigation
or are being developed for future litigation. The Department of Justice
(DOJ) has filed 77 CEPCLA section 107 cases with an approximate value of
$117,688,300. EPA has additionally referred 26 cases to DOJ which have
not yet been filed. The approximate value of these cases is $13,006,300.
Finally, EPA is in the process of developing 19 additional section 107
actions. The approximate value of these cases is $7,049,200. in total,
there are 155 section 107 actions pending with a total of $144,384,996.
NATURAL RESOURCE DAMAGE ENFORCEMENT
CEPCLA section 107(a) makes certain responsible parties liable for
damages for injury to, destruction of, or loss of natural
resources, including the reasonable costs of assessing such
injury, destruction, or loss resulting from ... a release.
EPA's ability to use this provision of the Act is limited because EPA does
not gualify as a "trustee" for natural resources, rmder Executive Order
12316, President Reagan delegated his authority as trustee under CEPCLA to the
Secretaries of Defense, the Interior, Commerce, and Agriculture for resources
under their statutorily mandated protection. In addition, State governments
have an independent Federal cause of action under CERCLA for resources within
the State or belonging to, managed by, controlled by, or appertaining to such
State, and therefore also constitute trustees of natural resources under
CERCLA.
Despite the fact that EPA is not a designated trustee for natural
resources, potentially responsible parties negotiating with EPA over Superfund
cleanups have at times requested releases from liability for natural resource
damages. Because it is not a trustee, EPA is not authorized to grant such
releases and so must confer in those instances with the appropriate
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4-24
trustee(s). This section describes EPA's efforts to facilitate settlements by
resolving natural resource damaae liability issues while upholding CFPCLA's
objectives.
EPA also has potential enforcement authority for natural resource damages
under the claims provisions of CEJRCLA section 112. rmder section 112,
trustees may present claims against the Fund for costs incurred in restoring,
replacing, rehabilitating, or acquiring the eguivalent of natural resources
damaged by releases of hazardous substances (including assessment costs).
EPA, as Fund manager, may subseguently pursue enforcement actions against
potentially responsible parties to recover Fund monies paid out as a result of
the claim. This authority has not been used, however, because no claims have
yet been paid out of the Fund.20
F,PA has only recently encountered the need to resolve natural resource
damage liability issues to facilitate settlements with responsible parties
at Ruperfund sites. In September 1983, EPA entered into a Memorandum
of Understanding with the Department of the Interior to provide for prelimi-
nary surveys of Superfund enforcement sites. Under the memorandum, EPA
may reguest that the Department of the Interior perform a preliminary survey
at any site to determine whether there may be a potential cause of action
for damages to natural resources for which the Department is a trustee.
lt»e Department then reports its findings to EPA and indicates whether a
release from liability may be incorporated into any settlements with poten-
tially responsible parties regarding the site, These preliminary surveys
do not assess the damages to natural resources. Rather, they identify
whether potential damages may exist that may not be restored as a result
of response actions.
Goals and Related Policies
The goal of the activity described above is to facilitate settlements
without compromising the intent of CERCLA to ensure protection of the
environment. Initially, EPA developed no formal policy regarding natural
resources liability, primarily because no claims had been filed. As
trustees, (especially States) began to seek damages for injury to natural
resources, potentially responsible parties increasingly reguested releases
from liability as part of settlements with EPA. This development prompted F.PA
to develop the Memorandum of Understanding with the Department of the
Interior. Current EPA plans call for a preliminary natural resource damage
survey to be done at every enforcement-lead Superfund site.
20 EPA is currently developing regulations to implement CERCLA section
112. EPA's claims policy reguires potential claimants to receive
pre-authorization for any response action for which a third party plans to
present a claim against the Fund (see section 300.25(d) of the National Oil
and Hazardous Substances Contingency Plan). In December 1983, EPA received 57
claims fron four states for natural resource damages totalling $2.7 billion.
EPA returned the claims because they did not meet filing reguirements. In
response to EPA's action, the state of New Jersey filed suit against EPA and
the Department of the Interior in April 1984, seeking promulgation of natural
resource damage assessment and claims regulations.
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4-25
Major Acccmplishments
Since EPA entered into the Memorandum of Understanding, the Agency has
provided the Cepartnent of Interior with a list of 6? sites (as of September
1984} in order of priority. The Department has conducted preliminary
surveys at 58 of these sites but, because findings are confidential,
no conclusions can be drawn about the number of sites for which a release
from liability has facilitated settlement.
EPA has not yet pursued similar arrangements with other Federal trustees
(e.g./ Defense, Commerce, Agriculture).21
CRIMINAL ENFORCEMENT
EPA's criminal enforcement program began two years ago. It is constrained
by limited resources that must be applied to all of the environmental statutes
which EPA administers.
CRPCLA imposes criminal sanctions only for failure to comply with
notification requirements under section 103, a relatively minor infraction in
comparison to criminal provisions of other environmental statutes. Generally,
any criminal case involving a violation of CERCLA will also involve a
violation of the Resource Conservation and Recovery act because this statute
has felony violations, whereas violations of CERCLA section 103 are
misdemeanors.
The primary authority of EPA's criminal enforcement program at Ruperfund
sites arises from sections 300.8(d) and (e) of the Resource Conservation and
Recovery Act. Section 3008(d) subjects to fines and/or imprisonment any
person who:
0 Knowingly treats, stores, or disposes of any hazardous
waste without having, or in violation of, a permit
under the Resource Conservation and Recovery Act or
under the Marine Protection, Research, and Sanctuaries
Act, or knowingly transports hazardous waste to such a
facility; or
0 Knowingly makes a false statement or knowingly alters,
destroys, or conceals records on any document reguired
by the Resource Conservation and Recovery Act.
Section 3008(e) of the Jtesource Conservation and Recovery Act establishes
even stronger criminal penalties for any person who knowingly endangers
another person and manifests an unjustified and inexcusable disregard for,
or an extreme indifference to, human life as a result of:
21 The National Oceanic and Atmospheric Administration is the only
federal trustee thus far to pursue natural resource damages at a Superfund
site (New Bedford Harbor).
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0 Knowingly transporting wastes to an unpermitted facility?
0 Knowlingly operating a facility without, or in violation
of, a permit;
0 Withholding reouired information in a permit application; or
0 Failure to comply with applicable interim status regulations
and standards.
In addition to these criminal provisions under the Resource Conservation
and Recovery Act, EPA has sought criminal penalties for violators of CERCLA's
notification requirements. Section 103(a) reguires persons that have
knowledge of a release of a hazardous substance egualing or exceeding the
reportable quantity for that substance to report such a release to the
National Response Center. Violators of section 103(a) are subject to a
fine of $10,000 or impriosonment for one year, or both. Similar penalties
may be sought against persons who failed within 180 days of CERCLA's passage
to notify EPA of certain treatment, storage, or disposal facilities which
they owned or operated at the time of disposal, or to which they transported
hazardous substances.
In certain circumstances, criminal penalties may also be sought in
Superfund cases for violation of Title Ifi of the U.S. Code. Department of
Justice attorneys in charge of an existing case may add Title 1R counts for
actions including, but not limited to:
0 Submitting fase statements to the Federal Government;
0 Mail Fraud;
0 Obstruction of justice;
0 Defrauding the U.S. Government; or
0 Conspiracy.
EPA's efforts in a criminal enforcement case begin when EPA receives
allegations that a criminal provision of the law has been violated. These
allegations may be submitted by citizens or local law enforcement or fire
officials, or by EPA staff involved with the site for other reasons.
The allegations are forwarded to the criminal investigative staff at
EPA's National Enforcement investigations Center in Denver. Staff at the
Center review the allegations and determine whetehr they warranted opening
an investigation. If an investigation is not warranted, the case may be
referred to the FPA Headguarters for civil or administrative action or it
may be set aside indefinitely. If an investigation is warranted, however,
the case is given a number and agents may use the full range of criminal
investigative techniques (e.g., wire tapping, interviews, search warrants)
to collect the evidence needed to prosecute the violator.
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vfaen the investiqation is complete and the necessary evidence has been
accumulated, a final report is prepared and the case is referred to the
Department of Justice for prosecution. To prosecute a case, the Department
must impanel and seek an indictment from a Grand Jury. If an indictment is
handed down, the next major step in the process is the arraignment, where
defendants enter pleas and bail is set. Arraiqnment is usually followed
by entering pre-trial motions, through which the defense ray attempt to
have the case dismissed. Barring such an occurence, a jury trial follows.
Pursuant to the Speedy Trial Act, trials must be held .within 70 days of an
indictment. Continuances or delays requested by the defense may be, and
usually are, granted, however.
In criminal trials, the jury decision must be unanimous for conviction.
Moreover, a higher burden of proof rests on the prosecution in a criminal case
than in a civil case. For civil actions, the prosecution roust prove only that
"the preponderance of evidence" establishes the liability of the defendant.
In criminal cases, however, the prosecution must prove the guilt of the
defendant "beyond any reasonable doubt." Thus, EPA must be sure it has a
solid case before it initiates a criminal action.
Goals and Related Policies
The goals of EPA's criminal enforcement program are:
0 To investigate, prepare, and follow through to
prosecution, criminal enforcement of environmental laws;
0 To convict violators and thereby deter potential
future violations; and
0 To provide a criminal enforcement perspective to EPA's
development of policy and guidance.
Because the resources available to the criminal enforcement program are so
limited, EPA has consistently pursued a policy emphasizing investigation and
referral of only the most severe violations of environmental law. In
determining the severity of a violation, the two significant criteria are:
(a) the extent of environmental contamination or human health hazard resulting
from, or threatened by, the prohibited conduct; and (b) the real or potential
impact of the violation on EPA's regulatory functions.
EPA guidance 22 specifies that the determination of health or environmental
threat should rely on considerations such as:
0 The duration of the conduct;
0 The toxicity of the pollutants involved;
0 The proximity of population centers;
22 "Criminal Enforcement Priorities for the Environmental Protection
Agency," Memorandum from Robert Perry, Associate Administrator for Legal and
Enforcement Counsel to Regional Counsels (October 12, 19ft2).
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0 The quality of the receiving land, air, or water;
0 The amount of Federal, State, or local cleanup
expenditures? and
0 Public sentiment supporting strong enforcement action
in response to a specific situation.
The need for criminal sanctions should also be considered when the prohibited
conduct may have caused EPA to make a regulatory decision that could have
serious impacts on health and the environment.
Major Accomplishments
Initially, the lack of resources allocated to the criminal enforcement
program limited its effectiveness. Before 1982, EPA employed only one person
with experience in criminal investigation and prosecution. Most of that
person's time was taken up with administrative duties, Ihe lack of criminal
investigative experience in the regions meant that cases referred to EPA
headquarters often contained insufficient substantiation to meet the
stringent scienter23 and burden-of-proof standards reguired for criminal
conviction. Oily one criminal conviction was achieved in 1981, for
Clean Wbter Act violations.
In October 1982, however, EPA hired 23 experienced criminal investigators
and assigned them to EPA headquarters, the National Enforcement investigations
Center in Denver, and six of the ten EPA Regions.
Nevertheless, EPA priorities, limited the use of CERCLA criminal sanctions
and the use of other sanctions at Superfund sites. Tn 1982, only one of
five criminal convictions included a CERCLA count.
In FY83, the number of indictments including CERCLA counts increased to
three, all of which also included other statutory counts. In FY84, CERCLA
counts have so far been handed down in two cases. In one, the CERCLA charge
was dismissed during the trial. In the other, the defendant pleaded guilty
to the CERCLA and Hazardous Materials Transportation Act counts with which
he was charged. According to the National Enforcement investigations
Center, one current case involves only a CERCLA count. The data available
are insufficient to determine the number of CERCLA cases or the number of
cases pursued under the Resource Conservation and Recovery Act at sites or
releases at which Superfund response was conducted.
22 "Criminal Enforcement Priorities for the Environmental Protection
Agency," Memorandum from Robert Perry, Associate Administrator for Legal and
Enforcement Counsel to Regional Counsels (October 12, 1982).
23 "Scienter" refers to the need to show "knowing violation," which is a
requirement for criminal convictions under the Resource Conservation and
Recovery Act, but not for convictions under CERCLA.
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The criminal enforcement program should continue to increase its activity
in the coming years. As more resources are devoted to it and investigators
beccFie more familiar with the range of criminal sanctions available, greater
enforcement of criminal provisions under CERCLA and the Resource Conservation
and Recovery Act at Runerfund sites should result. Moreover, current EPA
plans involve the addition of criminal investigators to cover all ten EPA
regions by the end of FY85.
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