Brownfields Handbook:
How to Manage Federal
Environmental Liability Risks
: Printed on Recycled Paper
Recycled/Recyclable - Printed with vegetable oil-based inks on recycled paper (minimum 50% postconsumer)
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EPA330-B-01-001 Enforcement and
November 2002 Compliance
http://www.epa.gov/compliance/about/offices/osre.html Assurance
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Brownfields Handbook:
How to Manage Federal
Environmental Liability Risks
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TABLE OF CONTENTS
The Purpose and Use of This Handbook 9D
Introduction to Brownfields 11D
Superfund Redevelopment Initiative 13
RCRA Brownfields Prevention Initiative 15
USTfields Initiative 15
New Legislation 16
Statutory and Regulatory Provisions 19D
CERCLA 19
Contiguous Property Owners, Bona Fide Prospective Purchasers, and
Innocent Landowners 21
Secured Creditor Exemption 25
Limitation of Fiduciary Liability 27
Protection of Government Entities That Acquire
Property Involuntarily 29
De Minimis Waste Contributor Settlements, Ability to Pay, and the De
Micromis Exemption 31
Service Station Dealer Exemption 33
Municipal Solid Waste Exemption 35
Brownfields Grants, State and Tribal Funding 37
Limitations on EPA CERCLA Enforcement and Cost Recovery Authority 39
RCRA 43
Underground Storage Tanks- Lender Liability Rule 45
Standards Applicable to Owners and Operators of Closed and Closing
Hazardous Waste Management Facilities: Post-Closure Permit
Requirements and Closure Process 47
Hazardous Waste Identification Rule for Contaminated Media
(HWIR-Media)Rule 49
Corrective Action Management Unit (CAMU) CFR Amendments 51
EPA Policies and Guidances 53D
Policy Towards Owners of Residential Property at Superfund Sites 55
Policy Towards Owners of Property Containing Contaminated Aquifers 57
Policy on Interpreting CERCLA Provisions Addressing Lenders and
Involuntary Acquisitions by Government Entities 59
Policy on the Issuance of EPA Comfort/Status Letters 61
Interim Approaches for Regional Relations with State Voluntary
Cleanup Programs 63
Revised Settlement Policy and Contribution Waiver Language
Regarding Exempt De Micromis Parties 65
Guidance on Enforcement Approaches for Expediting
RCRA Corrective Action 67
Coordination between RCRA Corrective Action and Closure and
CERCLA Site Activities 71
Comfort/Status Letters for RCRA Brownfield Properties 73
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Appendices
Appendix A- Related Policies and Guidances 75
Appendix B - Fact Sheets 95
Appendix C-Report on U.S. EPA's Prospective Purchaser Agreements and
Comfort/Status Letters 183
Appendix D -Sample Comfort/Status Letters 189
Appendix E -EPA Brownfield Contacts 199
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ince the announcement of the Environmental Protection
Agency's (EPA) Brownfields Action Agenda in January
1995, the Brownfields program has empowered states, tribes,
communities, and other stakeholders to work together to assess,
safely clean up and sustainably reuse contaminated property as
well as prevent future brownfields. Through the brownfields
pilot programs, more than $3.5 billion has been leveraged in
public and private cleanups, over 3,000 properties have been
assessed for contamination, and over $2.5 million in loans have
been made for cleanup and reuse. In addition, EPA has entered
into more than 150 prospective purchaser agreements and
issued more than 1,000 comfort letters to facilitate the cleanup
and reuse of property.
The Office of Site Remediation Enforcement (OSRE) plays a
key role in the success of the program through the development
of tools that clarify and address barriers to timely cleanup and
reuse posed by federal environmental liability. In November
1998, EPA issued The Handbook of Tools for Managing Fed-
eral Superfund Liability Risks at Brownfields and Other Sites.
The handbook provided a compilation of tools and a discussion
of how to use them in evaluating the benefits of reusing a
brownfield property.
EPAs Brownfields program continues to evolve. Until 1998,
brownfields were associated primarily with Superfund liability
and cleanup issues. As more properties were assessed through
the pilot program, stakeholders raised concerns about environ-
mental liabilities under the RCRA (Resource Conservation and
Recovery Act), mirroring the Superfund experience.
This updated edition of the handbook summarizes the tools
available that clarify and address barriers to cleanup and reuse
posed by RCRA. In addition, the handbook also summarizes
the new tools and initiatives that the Agency has undertaken
since 1995. These include the Superfund Redevelopment
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Initiative (SRI), USTfields, RCRA reforms, and improvements D
to the prospective purchaser agreement process. The newD
handbook also updates the list of related policies and guidance D
documents and EPA contacts. All of the other tools described D
in the 1998 edition remain unchanged. D
An electronic copy of the handbook may be found atD
www.epa.gov/Compliance/about/offices/osre.html. For addiQ
tional information regarding the handbook, please contactD
Elisabeth Freed at (202) 564-5117. For property-specificD
Superfund or RCRA discussions, please refer to the regional D
contact list provided in Appendix F. D
I want to acknowledge key staff- Elisabeth Freed, LoriD
Boughton, liana Saltzbart, Myron Eng, Shannon Kendall andD
Tessa Hendrickson - who devoted their time and creativity toD
produce this Handbook. We look forward to continuing ourD
progress and commitment to removing the barriers to timely D
cleanup and reuse of all types of contaminated property. D
Barry N. Breen, Director D
Office of Site Remediation Enforcement D
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T his handbook summarizes the statutory and regulatory
• provisions of CERCLA and RCRA, and the policy
and guidance documents most useful in managing environ-
mental cleanup liability risks associated with brownfields and
other sites.
The handbook also summarizes related documents and pro-
vides copies of relevant fact sheets and other documents, and
lists EPA headquarters and regional contacts for cleanup and
reuse issues. Designed for use by parties involved in the
assessment, cleanup, and reuse of brownfields, this handbook
provides a basic description of the purpose, applicability, and
provisions of each tool. To gain a more complete under-
standing of any tool described in this handbook, please refer to
the relevant reference documents listed in Appendix A, search
any of EPAs web sites listed in the Helpful Web Sites box (see
box on page 10), or call the office number listed with the
referenced document. The websites also provide the latest
information and updates.
Before developing a brownfield property, a party should collect
and consider information on past uses and potential contamina-
tion. The party should next identify which level of government
to consult about cleanup and liability protection, if needed.
Most parties will find that they can proceed directly to their
reuse activities. Others may want to pursue private mechanisms
such as indemnification or insurance or work at the state level
and make use of existing state tools (see box on page 14). If the
contamination on the property warrants EPAs attention under
CERCLA or RCRA, the party should first determine if EPA or
the state is taking or plans to take action at the property. After
determining where the property fits in the federal or state
cleanup pipeline, parties should find this handbook helpful in
deciding which tool or tools are most appropriate to help them
manage their federal CERCLA or RCRA liability risks.
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Helpful Web Sites
The following web sites
contain additional infor-
mation about issues ad-
dressed in this handbook:
•ODffice of Site Remediation
Enforcement:
www. epa. gov/compliance/
about/offices/osre.html
•CBrownfields:
www.epa.gov/brownfields
•DDffice of Solid Waste:
www.epa.gov/osw
• DSuperfund:
www. epa. gov/superfund
• DSuperfund Redevelopment
Initiative:
www. epa. gov/superfund/
programs/recycle
• CFederal Register:
www. archives .govfederal
_register/index.html
• DCode of Federal Regulations:
www. acce s s. gpo. gov/nara/
cfr
•[U.S. Code:
uscode.house.gov
Both CERCLA and RCRA
are designed to protect human
health and the environment
from the dangers of hazardous
waste. These two programs,
however, take fundamentally
different approaches to ad-
dressing the hazardous waste
problem. The RCRA
programs focus on how
wastes should be managed to
avoid potential threats to
human health and the environ-
ment. CERCLA, on the other
hand, is relevant primarily
when mismanagement has
already occurred.
Many prospective purchasers,
developers, and lenders have
avoided getting involved with
brownfield properties because
they fear that they too might
be held liable under CERCLA
or RCRA someday. The vast
majority of brownfield proper-
ties will never require EPA's
attention under CERCLA,
RCRA, or any other federal
law. Accordingly, parties'
fears of potential liability,
rather than their actual incur-
rence of liability, are the
primary obstacles to the
redevelopment and reuse of
brownfields. EPA hopes that
the remaining sections of this
handbook will assist in elimi-
nating or reducing these fears.
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S n the United States, real property is one of the most valuable
1 economic assets. While this country puts most real property
into productive use, some properties lie abandoned or idled.
These properties, called "brownfields," may remain unused or
underutilized because of actual contamination from past com-
mercial or industrial use or because people fear the property's
previous use may have left contamination. This fear may result
in relatively clean property remaining idle because parties, who
otherwise would redevelop brownfields, may search out unused
property, or "greenfields," to avoid the costs associated with the
cleanup of contamination.
The Environmental Protection Agency ("EPA" or "Agency")
believes that the cleanup of contaminated property, including
brownfields, and the clarification of federal environmental
cleanup liability, are the foundation for sustainable reuse of
previously used property. By fostering the cleanup and
appropriate reuse of brownfields, EPA fulfills its mission to
protect human health and the environment as well as to con-
serve greenfields from development that leads to environ-
mental degradation.
EPA recognizes that some private parties believe federal envi-
ronmental laws and policies have created roadblocks to reusing
property. The federal environmental laws that most affect the
cleanup and reuse of brownfields are CERCLA(often referred
to as Superfund) and RCRA. The cleanup provisions of these
Statutory Definition of "Brownfields" |
I The Small Business Liability Relief and Brownfields ||
| Revitalization Act of 2002 defines a'brownfield site' ||
| as "real property, the expansion, redevelopment, or reuse ||
| of which may be complicated by the presence or poten- ||
| tial presence of a hazardous waste substance, pollutant, ||
i or contaminant." ii
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laws require EPA to focus its
attention first on cleaning up
the nation's most toxic waste
sites in order to protect human
health and the environment.
Under CERCLA or RCRA,
the current owner or operator
of a contaminated property
may be held responsible for
the cleanup. Although
potential liability is a valid
and serious concern for
landowners, it is important to
keep this concern within
context. For example, in 1995,
the Office of Technology
Assessment estimated that
450,000 brownfields existed
nationwide. A more recent
report from the January 2000
U.S. Conference of Mayors
provides a national tally of
600,000. Only about 8% of
all brownfields are considered
for Superfund's National
Priorities List (NPL) (a list of
the nation's worst hazardous
waste sites) with less than 1%
actually placed. Therefore, at
least 99% of all the potential
brownfield properties across
the country will not require
federal EPA action. Although
the existence and applicabil-
ity of federal environmental
cleanup laws and regula-
The Local Nature
of Reuse Projects
By its very nature, property
reuse is a local activity.
Parties with the greatest
stake in the economic and
environmental benefits of a
reuse project are the
owner(s), surrounding
property owners, local citi-
zens, developer(s), local
government, and state gov-
ernment. Because of their
stake in the project, these
parties are generally in the
best position to plan, imple-
ment, and oversee required
cleanup and reuse activities.
There are many issues that
affect property reuse;
federal environmental
cleanup liability is only
one. After a party has a
clear understanding of its
federal environmental
cleanup liability risks and
the ways it can minimize
them, that party may work
primarily or exclusively
with state government,
local government, and
community interests in ad-
dressing non-federal issues
and planning and imple-
menting its reuse project.
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tions could have an impact
on development, the reality
is that EPA has taken action
at very few brownfield
properties.
The relatively small number
of these brownfield sites on
the NPL is just one fact
illustrating that federal envi-
ronmental cleanup liability
risks associated with
brownfields are not nearly as
large as one might imagine.
Even for risks that could be
significant, both Congress and
EPA have developed mecha-
nisms that can help parties
minimize and manage the
risks of reusing brownfields.
The fact that private parties,
states, tribes, municipalities,
communities, and federal
agencies collaborate to effec-
tively clean up and reuse
property indicates that these
tools are working. Evidence
of growth and interest in
brownfields reuse is demon-
strated by several initiatives
EPA has recently undertaken.
Superfund Redevelopment
Initiative (SRI), RCRA
Brownfields Prevention
Initiative, and USTfields are
three such efforts to more
broadly integrate brownfields
approaches into remedial
cleanup programs.
New Initiatives
Superfund
Redevelopment Initiative
In an effort to help communi-
ties return Superfund sites to
productive use, EPA launched
SRI. The goal of SRI is to
make sure that the Agency
and its partners have the
necessary tools to fully ex-
plore and implement land use
opportunities at every site.
This coordinated program
uses a wide variety of tools,
such as facilitation services,
that bring liable parties,
community groups, and local
government leaders together
to determine the future use of
a Superfund site once it is
clean. The site-specific nature
of Superfund remedy deci-
sions allow EPA regional staff
to work with stakeholders to
determine the best cleanup
approach to ensure successful
reuse.
A cornerstone of SRI is the
pilot program. Since the
summer of 1999, EPA an-
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nounced 50 pilots that would SRI has created a climate
receive national recognition where liable parties, local
through the development of governments, communities,
reuse plans; use of local developers, and others are
government and Agency rethinking the value of
cooperative agreements; Superfund sites. They are
workshops that bring together now more likely to consider
pilot participants to exchange these sites for a variety of new
information and share ideas; uses - from golf courses and
and a partnership conference parks to national retail stores
where pilot participants meet and transportation hubs. To
with private organizations to date, 260 NPL sites are now,
develop alliances.
Private Tools I
Although not addressed in this handbook, various private I
tools can be used to manage environmental liability risks I
associated with brownfields and other properties. These I
tools may include the following: j
•^Indemnification Provisions - These are private contractual j
mechanisms in which one party promises to shield another from j
liability. Indemnification provisions provide prospective buyers, j
lenders, insurers, and developers with a means of assigning j
responsibility for cleanup costs, and encourage negotiations j
between private parties without government involvement. j
• ^Environmental Insurance Policies - The insurance industry offers i
products intended to allocate and minimize liability exposures j
among parties involved in brownfields redevelopment. These j
products include cost cap, pollution legal liability, and secured j
creditor policies. Insurance products may serve as a tool to manage j
environmental liability risks, however, many factors affect their j
utility including the types of coverage available, the dollar limits j
on claims, the policy time limits, site assessment requirements, j
and costs for available products. Parties involved in brownfields j
redevelopment considering environmental insurance should always j
secure the assistance of skilled brokers and lawyers to help select j
appropriate coverage. i
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or soon will be, in reuse; on-
site businesses employ over
15,000 people with an annual
income of half a billion
dollars; and over 60,000 acres
have some ecological or
recreational reuse.
RCRA Brownfields
Prevention Initiative
The first brownfields assess-
ment pilots highlighted the
need to address environmental
issues beyond the Superfund
context. In June 1998, EPA
announced the RCRA
Brownfields Prevention
Initiative. The objective of
the Initiative is to prevent
future Superfund sites or
brownfields by using
brownfields tools to clean up
and provide long-term sus-
tainable reuse of RCRA
facilities. Through the Initia-
tive, EPA is exploring oppor-
tunities within the existing
statutory and regulatory
framework to facilitate the
reuse of RCRA sites. The
goal is to foster a
"brownfields" culture in
RCRA cleanup programs by
working together across EPA,
states, tribes, industry, and
communities to tap the rede-
velopment potential of RCRA
sites. To date, the Initiative
components include outreach
workshops; industry and
community stakeholder
dialogue sessions to identify
reuse impediments;
informational documents; and,
nine pilots.
USTfields Initiative
The Office of Underground
Storage Tanks (OUST) de-
fines USTfields as "aban-
doned or underused industrial
and commercial properties
where redevelopment is
complicated by real or per-
ceived environmental con-
tamination from federally-
regulated underground storage
tanks (USTs)." Of the esti-
mated 450,000 to 600,000
brownfields sites in the United
States, approximately 100,000
to 200,000 contain abandoned
USTs or are impacted by
petroleum tank leaks. The
Brownfields program, how-
ever, is unable to devote funds
toward USTfields because
CERCLA prohibits the use of
Trust Fund money on most
petroleum sites.
The USTfields Initiative plans
to use the same kind of prob-
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lem-solving methods implemented by the Brownfields pro-
gram. This new program will provide 50 grants to states and
tribes for community pilot projects. EPA will allot each pilot up
to $100,000 to assess and/or clean up sites to ready them for
reuse. The pilots are intended to supplement or coordinate with
existing EPA cleanup and redevelopment pilots, such as
brownfields assessment pilots. The USTfields pilots must
involve corrective action with respect to petroleum releases
from underground storage tanks and address the future reuse of
sites. OUST believes the Initiative will demonstrate how to
effectively assess and clean up petroleum-impacted sites and
foster reuse using limited resources.
New Legislation
The Small Business Liability Relief and Brownfields Revital-
ization Act, PL. 107-118 ("SBLRBRA"or "the Act") signed
into law by the President on January 11, 2002, creates new
exemptions from Superfund liability, authorizes brownfields
revitalization funding, and provides assistance to state and local
site clean-up programs.
The SBLRBRA consists of two titles. Title I addresses liability
exemptions for parties who generate and transport small quanti-
ties of hazardous substances and certain generators of munici-
pal solid waste. Title I also provides for expedited settlements
with certain parties that can demonstrate a limited or inability
to pay their share of response costs. The Title II amendments
focus on facilitating the responsible cleanup and re-use of
contaminated properties. The amendments provide specific
statutory authority for the U.S. Environmental Protection
Agency's (EPA or Agency) brownfields program and authorize
appropriations to fund brownfields grants and grants for state
and tribal response programs. Title II also provides conditional
exemptions from CERCLA liability for contiguous property
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clarifies the pre-existing innocent landowner defense. Finally,
the amendments place certain limits on EPA's use of its en-
forcement and cost recovery authorities at low-risk sites where
a person is conducting a response action in compliance with a
state program.
The complete text of SBLRBRA may be found at http://
www.epa.gov/brownfields/html-doc/hr2869.htm. A summary
of SBLRBRA may be found at http://www.epa.gov/swerosps/
bf/html-doc/2869sum.htm. A summary of the liability provi-
sions may be found in Appendix B.
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18
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As a result of several well-publicized hazardous waste disposal
disasters in the 1970's, Congress passed the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA) in 1980. CERCLA, also known as Superfund,
authorizes EPA to respond to environmental emergencies
involving hazardous wastes or pollutants and contaminants,
initiate investigations and cleanups, and take enforcement
action against responsible parties. To provide money for
these activities, Congress established a trust fund that was
financed by taxes on the manufacture and import of chemicals
and petroleum.
EPA may exercise its response authority through removal or
remedial actions. Removal actions are implemented when
there is an immediate threat to human health and the environ-
ment. EPA has used removal actions to avert fires and explo-
sions, prevent exposure to acute toxicity, and protect drinking
water supplies. Removal actions typically take less than
twelve months to implement and cost less than two million
dollars. Remedial actions address long-term threats to human
health and the environment caused by more persistent contami-
nation sources. Consequently, they usually take much longer
to complete and cost considerably more to implement than
removal actions.
Congress designed CERCLA to ensure that those who caused
the pollution, rather than the general public, pay for the
cleanup. In order to be held liable for the costs or performance
of cleanup under CERCLA, a party must fall within one of four
categories found in CERCLA section 107(a) (see box). Using
CERCLA's polluter pays liability scheme, EPA has ensured the
successful cleanup of many of the nation's worst hazardous
waste sites by those responsible for the contamination - the
Potentially Responsible Parties (PRPs).
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Despite its broad categories of
liable parties, CERCLA also
provides various forms of
liability protection which
extend to all lawsuits brought
under CERCLA, whether
initiated by EPA or by a
private party. A party who
satisfies the statutory provi-
sions can avoid lawsuits
brought by EPA seeking
cleanup costs or a response
action. Additionally, the party
would be protected from third
parties who are trying to
recoup money they expended
in cleaning up a site.
CERCLA's Four
Liability Categories
• Current owner or operator
of the facility;
• Owner or operator of the
facility at the time of
disposal of hazardous
substances;
• Person who generated or
arranged for the disposal
or treatment of hazardous
substances; or
• Transporter of the
hazardous substances, if
this person selected the
disposal or treatment site.
CERCLA's Liability Scheme
Under CERCLA, liability for cleanup is strict and joint
and several, as well as retroactive. The implications of
these features are as follows:
• Strict - A party may be held liable even if it did not act negligently
or in bad faith.
• Joint and several - If two or more parties are responsible for the
contamination at a site any one or more of the parties may be held
liable for the entire cost of the cleanup, unless a party can show
that the injury or harm at the site is divisible.
• Retroactive - A party may be held liable even if the hazardous
substance disposal occurred before CERCLA was enacted in 1980.
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The SBLRBRA creates two new conditional exemptions from
CERCLA "owner/operator" liability for contiguous property
owners and bona fide prospective purchasers (BFPP). Again,
these exemptions embody aspects of pre-existing EPA policies.
The new law also modified the existing innocent landowner
defense by clarifying the meaning of "all appropriate
inquiries." All three provisions embody some common
elements for persons to maintain non-liable status while also
including unique provisions and requirements.
Section 221 of the Act adds new § 107(q) which exempts from
owner or operator liability persons that own land contaminated
solely by a release from contiguous, or similarly situated
property owned by someone else. In the case of a contiguous
property owner, the owner must not have known or had reason
to know of the contamination at the time of purchase and must
not have caused or contributed to the contamination. The
section also modifies what constitutes appropriate care/
reasonable steps for contiguous property owners by clarifying
that the requirement does not obligate a contiguous property
owner to conduct groundwater investigations or remediate
groundwater contamination except in accordance with EPAs
pre-existing policy.
The new law generally provides greater protections for
contiguous property owners than EPAs existing policy on
owners of contaminated aquifers. The new law does not limit
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the exemption to properties contaminated by groundwater but
may also apply to soil contamination resulting from
neighboring properties. The Act also grants EPA the authority
to provide assurances that the Agency will not take action
against a person and protection from third party suits. As in
EPAs Contaminated Aquifer Policy, a person who purchases
with knowledge of the contamination cannot claim the
exemption; however, the new law notes that a party who does
not qualify for the exemption for this reason may still qualify
as a BFPP
The most notable aspect of the BFPP provision is that for the
first time Congress has limited the CERCLA liability of a party
who purchases real property with knowledge of the
contamination. The caveats to this exemption, in addition to
the common elements, include a requirement that all disposal
takes place prior to the date of purchase, that the person does
not impede a response action, and that the property may be
subject to a "windfall lien". The windfall lien provision
provides for a lien on the property of a BFPP if EPA has
unrecovered response costs and the response action increased
the fair market value of the property. The lien arises as of the
date the response cost was incurred and the amount cannot
exceed the increase in fair market value attributed to the
response action.
EPAs policy on prospective purchaser agreements (PPAs)
proved one of the most successful and high profile
administrative liability reforms prior to enactment of the new
law. Immediately after passage, EPA was asked repeatedly
whether the Agency would continue to issue PPAs. Many
people suggested that EPA needs to continue the practice,
despite the fact that the legislation provides an exemption and
confronts an ongoing complaint, from some of these same
people, that EPA should not be involved in private real estate
transactions.
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To address this issue, on May 31, 2002, EPA's Office of Site
Remediation Enforcement issued new guidance entitled Bona
Fide Prospective Purchasers and the New Amendments to
CERCLA (also found at http://epa.gov/compliance/resources/
policies/cleanup/superfund/bonf-pp-cercla-mem.pdf). This
guidance states that "EPA believes that, in most cases, the
Brownfields Amendments make PPAs from the federal
government unnecessary." Therefore, in the majority of cases
EPA intends for the law to be self-implementing. However, the
guidance does recognize the following two exceptions where
EPA may enter into an agreement with the purchaser: 1) there
is likely to be a significant windfall lien needing resolution;
and 2) the transaction will provide significant public benefits
and a PPA is needed to ensure the transaction will take place.
The contiguous property owner exemption, the definition of
what constitutes a BFPP, and the innocent landowner defense
found in CERCLA Section 107(b)(3) and the definition of
"contractual relationship" in Section 101(35), all contain the
following common obligations which persons seeking these
exemptions must meet:
• conduct "all appropriate inquiry" prior to purchase of the
property;
• not be potentially liable or affiliated with any person
potentially liable;
• exercise appropriate care by taking reasonable steps to "stop
any continuing release; prevent any threatened future
release; and prevent or limit any human, environmental, or
natural resource exposure to any previously released
hazardous substance;"
• provide full cooperation, assistance, and access to persons
undertaking a response action or natural resource
restoration;
• comply with all governmental information requests
• comply with land use restrictions and not impede the
performance of institutional controls; and
• provide all legally required notices regarding releases of
hazardous substances
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At time of publication, EPA is considering whether to produce
general guidance on these "common elements." EPA has heard
from stakeholders that they need clarification of these
requirements to ensure they take appropriate actions to avoid
liability. EPA would like to ensure national consistency and
provide direction where needed. However, requirements such
as what constitutes appropriate care/reasonable steps will
greatly depend on site specific circumstances.
Changes to CERCLA Section 101(35)(B) now define "all
appropriate inquiries" for purposes of all three provisions.
First, the Act directs EPA to promulgate regulations based on
statutory criteria within two years of date of enactment,
establishing standards for all appropriate inquiry. For
purchases prior to issuance of these regulations, the Act utilizes
two standards based on date of purchase. For purchases prior
to May 31, 1997, the Act sets forth a narrative standard,
directing courts to consider such factors as, inter alia,
specialized knowledge of the defendant, the obviousness of the
contamination, and relationship of purchase price to property
value. For purchases after May 31, 1997, the Act states that
procedures set forth in the American Society for Testing and
Materials, Standard Practice for Environmental Site
Assessment: Phase 1 Environmental Site Assessment Process,
Standard El527-97 shall satisfy the requirement. The section
also provides that for purchasers of property for residential use
or similar use by a nongovernmental or noncommercial entity a
facility inspection and title search shall fulfill the requirements.
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CERCLA Section 101(20)(A) contains a secured creditor
exemption that eliminates owner/operator liability for lenders
who hold indicia of ownership in a CERCLA facility primarily
to protect their security interest in that facility, provided they
do not participate in the management of the facility.
Before 1996, CERCLA did not define the key terms used in
this provision. As a result, lenders often hesitated to loan
money to owners and developers of contaminated property for
fear of exposing themselves to potential CERCLA liability. In
1992, EPA issued the "CERCLA Lender Liability Rule" to
clarify the secured creditor exemption. After the Rule was
invalidated by a court in 1994, Congress incorporated many
sections of the Rule into the Asset Conservation, Lender Liabil-
ity, and Deposit Insurance Protection Act of 1996. That Act
amended CERCLAs secured creditor exemption to clarify the
situations in which lenders will and will not be protected from
CERCLA liability. The amended exemption appears at
CERCLA Section 101(20)(E)-(G).
Other Considerations
The 1996 amendment also protects lenders from contribution
actions and government enforcement actions. Regardless of
CERCLA's secured creditor exemption from owner/operator
liability, a lender may be liable under CERCLA as a generator
or transporter if it meets the requirements outlined in CERCLA
Section 107 (a)(3) or (4). In June 1997, EPA issued a lender
policy that further clarifies the liability of lenders under
CERCLA (see page 59). Statutory and Regulatory Provisions
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"Participation in Management" Defined
A lender "participates in manage- • Provides financial or other
ment" (and will not qualify for the advice in an effort to prevent or
exemption) if the lender: cure default; and,
Restructures or renegotiates the
terms of the security interest;
provided the actions do not rise
to the level of participating in
management.
• Exercises decision-making
control over environmental
compliance related to the
facility, and in doing so,
undertakes responsibility for
hazardous substance handling
or disposal practices; or
• Exercises control at a level
similar to that of a manager of
the facility, and in doing so,
assumes or manifests
responsibility with respect to
1. Day-to-day decision-
making on environmental
compliance, or
2. All, or substantially all, of
the operational (as opposed
to financial or
administrative) functions of
the facility other than
environmental compliance.
The term "participate in manage-
ment" does not include certain
activities such as when the lender:
• Inspects the facility;
• Requiries a response action or
other lawful means to address
a release or threatened release;
• Conducts a response action
under CERCLA section
107(d)(l) orunderthe direction
of an on-scene coordinator;
After foreclosure, a lender who did
not participate in management
prior to foreclosure is not an
"owner or operator" if the lender:
• Sells, releases (in the case of a
lease finance transaction), or
liquidates the facility;
• Maintains business activities or
winds up operations;
• Undertakes a response action
under CERCLA section
107(d)(l) orunderthe direction
of an on-scene coordinator; or,
• Takes any other measure to
preserve, protect, or prepare the
facility for sale or disposition;
provided the lender seeks to
divest itself of the facility
at the earliest practicable,
commercially reasonable time,
on commercially reasonable
terms. EPA considers this test
to be met if the lender, within
12 months after foreclosure,
lists the property with a broker
or advertises it for sale in an
appropriate publication.
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A "fiduciary" is a person who acts for the benefit of another
party. Common examples include trustees, executors, and
administrators. CERCLA Section 107(n), added by the Asset
Conservation, Lender Liability, and Deposit Insurance Protec-
tion Act of 1996, protects fiduciaries from personal liability in
certain situations, provides a liability limit for those fiduciaries
who are found liable, and describes situations in which fiducia-
ries will and will not receive this statutory protection.
CERCLA's fiduciary provision, however, does not protect the
assets of the trust or estate administered by the fiduciary.
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Fiduciary Liability
For actions taken in a fi-
duciary capacity, liability
under any CERCLA pro-
vision is limited to assets
held in the fiduciary ca-
pacity. A fiduciary will
not be liable in its per-
sonal capacity for certain
actions such as:
• Undertaking or requiring
another person to undertake
any lawful means of
addressing a hazardous
substance;
• Enforcing environmental
compliance terms of the
fiduciary agreement; or
• Administering a facility that
was contaminated before
the fiduciary relationship
began.
The liability limitation
and "safe harbor" de-
scribed above do not limit
the liability of a fiduciary
whose negligence causes
or contributes to a release
or threatened release.
The term "fiduciary"
means a person acting for
the benefit of another
party as a bona fide
trustee, executor, or ad-
ministrator, among other
things. It does not include
a person who:
• Acts as a fiduciary with
respect to a for-profit trust or
other for-profit fiduciary
estate, unless the trust or
estate was created:
0 Because of the incapacity
of a natural person, or
0 As part of, or to facilitate,
an estate plan.
• Acquires ownership or
control of a facility for the
purpose of avoiding liability
of that person or another
person.
Nothing in the fiduciary
subsection applies to a
person who:
• Acts in a beneficiary or non-
fiduciary capacity, directly or
indirectly, and benefits from
the trust or fiduciary
relationship; or
• Is a beneficiary and fiduciary
with respect to the same
fiduciary estate and, as a
fiduciary, receives benefits
exceeding customary or
reasonable compensation.
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CERCLA sections 101(20)(D) and 101(35)(A) protect federal,
state, and local government entities from owner/operator
liability if they involuntarily acquire contaminated property
while performing their governmental duties. If a unit of state
or local government makes an involuntary acquisition, it is
exempt from owner/operator liability under CERCLA. Addi-
tionally, a state, local, or federal government entity that makes
an involuntary acquisition will have a third-party defense to
owner/operator liability under CERCLA if:
The contamination occurred before the government entity acquired the
property;
The government entity exercised due care with respect to the
contamination (e.g., did not cause, contribute to, or exacerbate the
contamination); and
The government entity took precautions against certain acts of the party
that caused the contamination and against the consequences of those
acts.
Regulations set forth at 40 CFR 300.1105, and validated by
the 1996 Asset Conservation, Lender Liability, and Deposit
Insurance Protection Act, provide some examples of involun-
tary acquisitions.
As the following examples indicate, a government entity need
not act completely passive in order to acquire property involun-
tarily. Often government entities must take some sort of
discretionary, volitional action before they can acquire property
following circumstances such as abandonment, bankruptcy, or
tax delinquency. In these cases, the "involuntary" status of the
acquisition is not jeopardized.
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Acceptable Involuntary Acquisitions
EPA considers an acquisition to be "involuntary" if the
government's interest in, and ultimate ownership of, the prop-
erty exists only because the conduct of a non-governmental
party gives rise to the government's legal right to control or
take title to the property.
Involuntary acquisitions by government entities include the
following:
• Acquisitions made by a government entity functioning as a sovereign
(such as acquisitions following abandonment or tax delinquency);
• Acquisitions made by a government entity acting as a conservator or
receiver pursuant to a clear and direct statutory mandate or regulatory
authority (such as acquisitions of the security interests or properties
of failed private lending or depository institutions);
• Acquisitions made by a government entity through foreclosure and
its equivalents while administering a governmental loan, loan
guarantee, or loan insurance program; and
• Acquisitions made by a government entity pursuant to seizure or
forfeiture authority.
Other Considerations
A government entity will not have a CERCLA liability exemp-
tion or defense if it has caused or contributed to the release or
threatened release of contamination. As a result, acquiring
property involuntarily does not unconditionally or permanently
insulate a government entity from CERCLA liability. Fur-
thermore, the liability exemption and defense described above
do not shield government entities from liability as generators or
transporters of hazardous substances under CERCLA section
107(a)(3)or(4).
In June 1997, EPA issued a policy that further clarifies the
CERCLA liability of government entities that involuntarily
acquire property (see page 59 and fact sheet on page 125).
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At a CERCLA site, some parties may have contributed only
minimal amounts of hazardous substances compared to the
amounts contributed by other parties. Under CERCLA section
122(g), these contributors of small amounts may enter into de
minimis waste contributor settlements with EPA. Such a
settlement provides the waste contributor with a covenant not
to sue and contribution protection from the United States. As a
result, the settling party is protected from legal actions brought
by EPA or other parties at the site. In exchange for the settle-
ment, the de minimis party agrees to provide funds, based on
its share of total waste contribution, toward cleanup, or to
undertake some of the actual work.
Section 102(b) of SBLRBRA amended Section 122(g) of
CERCLA and grants EPA the authority to enter into expedited
settlements with persons who demonstrate an inability or
limited ability to pay response costs. The Act directs EPA to
consider whether the person can pay response costs and still
maintain basic business operations, which includes consider-
ation of financial condition and ability to raise revenues. The
SBLRBRA also requires EPA to provide a written determina-
tion of ineligibility to a potentially responsible party that
requests a settlement under any provision in Sectionl22(g).
Any determination regarding eligibility is not subject to judi-
cial review.
Section 102(a) of SBLRBRA also added new §107(o) to
CERCLA and exempts generators and transporters of de
micromis quantities of hazardous substances from response
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cost liability.1 The new law requires a person seeking the
exemption to demonstrate that "the total amount of the material
containing hazardous substances they contributed was less than
110 gallons of liquid materials and 200 pounds of solid
materials" and that "all or part of disposal, treatment, or
transport occurred before April 1,2001." This exemption is
subject to the following exceptions: 1) if the materials
contribute significantly, either on their own or in the aggregate,
to the cost of the response action or natural resource to the cost
of the response action or natural resource restoration; 2) if the
person fails to comply with an information request; 3) if the
person impedes a response action or natural resource
restoration; or 4) if the person has been convicted of a criminal
violation for conduct to which the exemption would apply.
The Act provides significant protection for generators and
transporters of de micromis amounts of hazardous substances
at NPL sites where disposal, treatment or transport occurred
after April 1, 2001. While EPA is not directed to provide
contribution protection to these parties, the Act includes
substantial disincentives for litigation by private party
plaintiffs. First, the exemption shifts the burden of proof to
private party plaintiffs to show that the exemption does not
apply. Second, the new law makes private party plaintiffs liable
for the defendant's costs and fees if a court finds the defendant
to be exempt under this provision. These provisions should
force potentially responsible parties seeking contribution for
response costs to exercise greater diligence in respect to whom
they drag into court.
The complete text of SBLRBRAmay be found at http://
www.epa.gov/brownfields/html-doc/hr2869.htm
§ 102(a), 115 Stat. 2356 (to be codified at 42 U.S.C. § 9607(o))(subsequent
citations are to 42 U.S.C.).
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The Superfund law includes a liability exemption for service
station dealers who accept used oil for recycling. The
exemption is meant to encourage service station dealers to
accept used motor oil for recycling from do-it-yourself
recyclers, i.e., people who change the oil in their own cars,
trucks, and appliances. A dealer may be eligible for the
exemption if the recycled oil is not mixed with any other
hazardous substance and is managed in compliance with Solid
Waste Disposal Act regulations.
As long as a small quantity of used oil was removed from the
engine of a "light duty motor vehicle" or house appliances by
the owner, and the owner presents it to the dealer for delivery
to an oil recycling facility, the dealer can presume that the used
oil is not mixed with other hazardous substances. The mixing
of the used oil with other hazardous substances is what would
trigger Superfund liability.
Superfund defines a service station dealer as persons who own
or operate retail establishments that sell, repair, or service
motor vehicles and accept recycled oil from light vehicle and
household appliance owners for recycling.
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34
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Section 102(a) o f SBLRBRA also added §107(p) to CERCLA
which exempts certain generators of municipal solid waste
(MSW) from Superfund response cost liability at NPL sites.
The persons covered by this exemption are owners, operators,
and lessees of residential property; small businesses; and
certain non-profit organizations. This exemption is subject to
all but one of the same exceptions as found in the de micromis
exemption. The new law defines MSW in the following two
ways: 1) as waste generated by a household; and 2) as waste
generated by a commercial, industrial, or institutional entity
which is essentially the same as waste generated by a
household, is collected as part of normal MSW collection, and
contains no greater amounts of hazardous substances than that
contained in the waste of a typical single family household.
Similar to the de micromis exemption, the MSW exemption has
burden of proof and fee shifting provisions to discourage
litigation against exempt parties. However, the burden of proof
provision in the MSW exemption is a bit more complicated
because it differs based on time of disposal and applies in some
cases to both private and governmental plaintiffs. Furthermore,
the statute sets forth a complete bar to private party actions
against owners, operators, or lessees of residential property
which generated MSW. As with the de micromis exemption,
the cost and fee shifting provision only applies to
nongovernmental entities.
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36
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In addition to the contiguous property owner, bona fide
prospective purchaser, and innocent landowner provisions, Title
II for the first time provides explicit statutory authority for
EPA's brownfields program. Title II also authorizes EPA to
provide grants to states and tribes to develop response
programs. While this article focuses on the liability provisions
these aspects of the new law are certainly worth mentioning.
Generally, brownfields are considered properties which have
real or perceived contamination that discourages redevelopment
or reuse due to the potential liability of those persons
associated with the site. Since 1995, EPA has maintained a
successful brownfields program aimed at promoting the
cleanup and redevelopment of brownfield properties. The
brownfields program has provided numerous grants and assistance
to states and communities for brownfields assessments,
revolving loan funds for brownfields cleanup, and job training
and development. The program has also worked to identify
"Showcase Communities" that serve as national models for
successful brownfields assessments, cleanups, and
redevelopment.
The new law recognizes EPA's efforts and expands the existing
program. The Act authorizes annual appropriations of $200
million for the brownfields grant program for fiscal years 2002
through 2006. EPA will use appropriations to provide brownfield
characterization and assessment grants, to capitalize revolving
loan funds, and for the first time to provide direct grants for
brownfields cleanup. The Act also provides an
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expanded list of persons eligible for these funds that include
states, local governments, state chartered redevelopment
agencies, tribes, land clearance authorities, and for certain
funds nonprofits and other private entities. The Act provides
ranking criteria for grant distribution and directs EPA to
provide guidance for grant applicants. EPA published guidance
in the Federal Register on October 24, 2002 (Volume 67,
Number 207, pp. 65348-65350) available on line at http://
www.epa.gov/fedreg. Fact sheets titled "Eligibility for
Brownfields Funding" and "Summary of Brownfields Grant
Guidelines" may be found in Appendix B.
Title II also authorizes $50 million annually from 2002 through
2006 to provide assistance for state and tribal response
programs, to capitalize a revolving loan fund for brownfield
remediation, or purchase insurance or create a risk sharing
pool, an indemnity pool, or insurance mechanism to help fund
response actions. To receive grants state and tribal programs
must meet or be working towards several criteria or the state or
tribe must have a memorandum of agreement for voluntary
response programs with EPA. States receiving funds must also
maintain and update annually a public record of sites going
through a state's response program.
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Section 231 of SBLRBRA amends CERCLA by adding a new
Section 128. Section 128(b) sets forth limitations on EPA's
enforcement authority under Section 106(a) and cost recovery
authority under Section 107(a). These limitations apply to
actions against persons who have conducted or are conducting
response actions at "eligible response sites" in compliance with
a "State program that specifically governs response actions for
the protection of public health and the environment." The
limitations only apply to response actions commenced after
February 15, 2001 and in states that maintain a public record of
sites being addressed under a state program in the upcoming
year and those addressed in the preceding year. Additionally,
these limitations are subject to specified exceptions.
The definition of an "eligible response site" is found in new
CERCLA Section 101(41). The definition includes
"brownfield sites" as defined in Section 101(39)(A) and (B).
The definition of a brownfield site is very broad in that it
essentially captures any real property with real or perceived
contamination and, generally, excludes facilities:
• subject to a planned or ongoing CERCLA removal;
listed or proposed for listing on the national priorities list;
• subject to a unilateral administrative order, court order,
administrativeorder on consent, or consent decree under
CERCLA;
• subject of a unilateral administrative order, court order,
administrative order on consent, consent decree, or permit under
the Resource Conservation & Recovery Act (RCRA, 42 U.S.C.
Section 6901 et seq.), the Clean Water Act (CWA, 33 U.S.C.
Section 1251 et seq.), the Toxic Substances Control Act (TSCA,
15 U.S.C. Section 2601 et seq.), or the Safe Drinking Water Act
(SDWA, 42 U.S.C. Section 300f et seq.);
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subject to corrective action under RCRA §§ 3004(u) or 3008(h),
to which a corrective action permit or order has been issued or
modified requiring the implementation of corrective measures;
• a land disposal unit with closure notification submitted and a
closure plan or permit;on land subject to the custody, jurisdiction,
or Ccontrol of a department, agency, or instrumentality of the
United States, except for land held in trust by the United States for
an Indian Tribe;
• a portion of a facility contaminated by PCBs subject to
remediation under TSCA; or
• a portion of a facility receiving assistance from the Leaking
Underground Storage Tank Trust Fund (LUST Fund sites).
For purposes of the definition of an eligible response site,
LUST Fund sites are included. EPA may include sites
excluded under the fourth, fifth, sixth, and eighth bullets on a
site-by-site basis. The definition of eligible response site
contains an additional exclusion for sites at which EPA has
conducted a PA or SI and after consulting with the State has
determined that the site achieves a preliminary score sufficient
for, or otherwise qualifies for, listing on the NPL.
The limitations on EPA's authority in Section 128(b)(l) are
subject to a number of statutory exceptions. EPA is not
prohibited from taking action if the state requests EPA
assistance; contamination has migrated across state lines or
onto federal property; after considering response actions
already taken, a release or threatened release poses an
imminent and substantial endangerment requiring additional
response actions; or new information indicates that conditions
or contamination at the site may present a threat. If EPA
intends to take an action that may be prohibited under §
128(b)(l), it must notify the state and wait forty-eight hours for
a reply, unless one of these exceptions applies, in which case
EPA must still notify the state but may act immediately.
Additionally, the new law does not prohibit EPA from seeking
to recover costs incurred prior to
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date of enactment or during a period during which the
limitations did not apply.
EPA has decided not to issue guidance on these new limits on
EPA authority. Congress provided a fairly detailed statutory
structure. Also, this provision appears to embody EPA's
current practice of generally not getting involved at sites being
cleaned up under a state program. Some EPA regional
personnel have communicated with their respective states
regarding how they anticipate handling the notification
requirements and state requests for assistance, if necessary.
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42
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Congress enacted the Resource Conservation and Recovery Act
(RCRA) in 1976 to protect human health and the environment
from the potential hazards of waste disposal; to conserve
energy and natural resources; to reduce the amount of waste
generated; and to ensure that wastes are managed in an envi-
ronmentally sound manner. RCRA is actually a combination of
the first federal solid waste statutes with subsequent amend-
ments to address hazardous waste and underground storage
tanks (USTs). These three distinct yet interrelated programs
exist as part of RCRA. Subtitle D is the solid waste program
and its focus is on the management of household garbage and
non-hazardous industrial solid waste. Subtitle C is the hazard-
ous waste program and its focus is on the management of
hazardous waste from the time it is generated until its ultimate
disposal. Subtitle I is the underground storage tank program
and its mission is to prevent and clean up releases of petroleum
or hazardous substances from tanks.
States are an integral part of all three of RCRA's programs.
The states oversee most of the Subtitle D solid waste program
whereby they issue permits and ensure compliance with its
requirements. "Under Subtitle C, EPA reviews state programs
that consist of requirements for the generation, transportation,
treatment, storage, and disposal of hazardous wastes for
facilities within that state. If the state program is acceptable,
EPA authorizes that state to administer the state program in
lieu of the federal program and facilities must then comply
with the authorized state requirements rather than the corre-
sponding federal requirements. However, after authorization,
both the state and EPA have the authority to enforce those
requirements."
Past and present activities at RCRA facilities have sometimes
resulted in releases of hazardous wastes into the soil, ground
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water, surface water, and air.
Subtitle C of RCRA requires
the investigation and cleanup
of these hazardous waste
releases at RCRA facilities.
This program is known as
corrective action. The
facilities that fall under the
corrective action program
are generally active ones that
are permitted or are seeking
a permit to treat, store, or
dispose of hazardous waste.
As a condition of the operat-
ing permit, owners/operators
are required to clean up
hazardous wastes that are or
have been released through
current or past activities. It
is, therefore, usually the
current owner and operator
of a facility that is held re-
sponsible for cleaning up
any contamination. However,
other parties may be held
responsible under certain
conditions.
RCRA Cleanup Reforms
In order to expedite the
cleanup at hazardous waste
sites regulated by RCRA,
EPA launched a set of admin-
istrative reforms in 1999 and
2001, known as the RCRA
Cleanup Reforms. EPA
developed the reforms as a
comprehensive way to address
the key impediments to
cleanups, maximize program
flexibility, and spur progress
toward a set of ambitious
national cleanup goals. The
reforms include methods to
enhance public access to
cleanup information and
improve opportunity for
public involvement in the
cleanup process; focus the
program more effectively on
achievement of environmental
results; pilot innovative
approaches; and capitalize on
the redevelopment potential of
RCRA facilities to expedite
cleanup. (See Appendix B)
The RCRA Corrective Action enforcement program
requires owners and operators of RCRA facilities to:
• conduct investigations
• conduct a thorough cleanup of the hazardous release
• monitor the cleanup to make sure it complies with applicable
state and federal requirements
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September?, 1995
Subtitle I of RCRA contains a "security interest exemption"
that provides secured creditors ("lenders") an explicit statutory
exemption from corrective action for releases from petroleum
USTs. Because the statute is unclear about the scope of the
exemption coverage, EPA issued the UST Lender Liability
Rule which specifies the conditions under which certain se-
cured lenders may be exempted.
Both prior to and after foreclosure of a facility, a lender is
eligible for an exemption from compliance with all Subtitle
I requirements as an UST "owner" and "operator" if the
lender: 1) holds an ownership interest in an UST, or in a prop-
erty in which the UST is located, to protect its security interest
(a lender typically holds property as collateral as part of the
loan transaction); 2) does not engage in petroleum production,
refining, and marketing; and 3) does not participate in the
management or operation of the UST. A lender also must
empty its UST(s) within 60 days after foreclosure and either
temporarily or permanently close the UST(s) unless there
is a current operator at the site who can comply with UST
regulations.
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October 22, 1998
Under Subtitle C of RCRA, an owner/operator is required to
obtain a permit to operate a hazardous waste treatment, storage,
or disposal facility (TSDF). RCRA regulations specify the
requirements that must be met when closing hazardous waste
land disposal units ("units"). There are two ways to close units
under RCRA. The units may either be clean closed by removal
or decontamination of waste or they may be closed by leaving
waste in place with post-closure care. If the facility operates
under a permit, the permit should already contain a closure plan
and include any post-closure requirements. If the facility does
not have a permit, then a post-closure permit is needed only if
waste will be left in place.
This rule, known as the Closure/Post-Closure Rule, amends
RCRA's closure and post-closure care requirements by expand-
ing regulatory options available to EPA and authorized state
programs. These options remove impediments to cleanup at
hazardous waste facilities in two areas. First, regulators may
either issue a post-closure permit to a facility or impose the
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same requirements in an enforceable document issued under an
alternate non-permit authority. Second, EPA and authorized
states may use corrective action requirements to address these
units. The corrective action program, as discussed in the rule,
allows EPA and authorized states to clean up under RCRA,
CERCLA, or state authority authorized for this rule.
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November 30, 1998
EPA issued new RCRA
requirements for hazard-
ous remediation waste that
is treated, stored, or
disposed of during
cleanup actions. This
rule, known as the HWIR-
Media rule, streamlines
the RCRA permit require-
ments for cleanup activi-
ties through the use of
remedial action plans
(RAPs). It also eliminates
the requirement for
facility-wide corrective
action at sites that are only
required to obtain a permit
because of the cleanup
activities and discusses
the use of a "staging pile"
for temporary cleanup
waste storage.
HWIR Media Rule:
• Makes permits for treating,
storing, and disposing of
hazardous remediation wastes
faster and easier to obtain;
• Provides that obtaining these
permits will not subject the
owner and/or operator to
facility-wide corrective action;
• Creates a new kind of unit
called a "staging pile" that
allows more flexibility to
temporarily store remedia-tion
waste during cleanup;
• Excludes dredging materials
from RCRA Subtitle C
(hazardous waste manage-
ment requirements) if they are
managed under an appropriate
permit under the Marine
Protection, Re-search and
Protection Act or the Clean
Water Act; and,
• Makes it faster and easier for
states to receive author-ization
when they update
their RCRA programs to
incorporate Federal RCRA
regulation revisions.
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50
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Use of CAMUs was authorized in 1993 for the purpose of on-
site treatment, storage, and disposal of hazardous wastes
managed for implementing cleanup. When cleanup wastes are
managed within a CAMU, they do not trigger certain Resource
Conservation and Recovery Act requirements that apply to
wastes generated by industrial processes. This gives the site
cleanup manager much more flexibility to consider a broader
range of cleanup options tailored to site- and waste-specific
conditions, and has led to faster and more aggressive cleanups
at individual sites.
The CAMU amendments are intended to provide minimum
standards for operation of CAMUs. They address concerns of
some stakeholders that management discretion under the
original rule might lead to mistakes or abuse. EPA believes the
amendments protect human health and the environment with-
out undoing the benefits of the CAMU rule, and make the
corrective action process is more consistent nationally, more
explicit, and more predictable in its results.
The final CAMU amendments for the management of remedia-
tion wastes were signed by the Administrator on December 21,
2001. They establish standards governing: (1) the types of
wastes that may be managed in a CAMU; (2) the design
standards that apply to CAMUs; (3) the treatment requirements
for wastes placed in CAMUs; (4) information submission
requirements for CAMU applications; (5) responses to releases
from CAMUs; and (6) public participation requirements for
CAMU decisions.
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In addition, this rule "grandfathers" certain categories of
CAMUs and creates new requirements for CAMUs used only
for treatment or storage. States currently authorized for the
CAMU rule are granted "interim authorization by rule." Expe-
dited authorization is provided for states authorized for correc-
tive action, but not the CAMU rule.
In response to comments, the Agency modified staging pile
rules to allow physical treatment in staging piles, expanding the
universe of CAMU-eligible wastes to include buried tanks
containing wastes, and giving Regional Administrators discre-
tion to choose a leaching test other than the Toxicity Character-
istic Leaching Procedure (TCLP) to assess treatment. It also
adds a new provision allowing off-site placement of hazardous
CAMU-eligible waste in hazardous waste landfills, if they are
treated to meet modified CAMU treatment standards. States
that are already authorized for the 1993 CAMU Rule have 60
days to notify EPA that they intend to use the revised Correc-
tive Action Management Unit Standards rule as guidance.
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Issuing a policy or guidance document is the strongest
statement that EPA may make, short of issuing regulations,
regarding the manner in which EPA will generally approach the
handling and evaluating of a regulated entity. Although courts
are not required to consider EPA's administrative policies or
guidance documents, they have recognized EPA's technical
expertise and have previously given deference to EPA's admin-
istration of the laws over which the Agency has jurisdiction.
When a site, circumstance, or party fall within the defined
criteria of an EPA policy or guidance document, individuals
should find satisfaction in the fact that EPA will act in a man-
ner consistent with that policy. In many cases, EPA's statement
of policy not to pursue a particular party will provide adequate
protection and comfort to an eligible party so that additional
documentation from EPA is not needed. In other cases, the
potential for liability may motivate a party either to enter into
an agreement with EPA that provides protection from
CERCLA or RCRA actions brought by EPA or other parties, or
to seek written comfort from EPA.
The policy and guidance documents summarized in this section
describe the different options to manage CERCLA and RCRA
liability risks. Because the documents focus on issues at non-
federally-owned properties, parties interested in property
currently or formerly owned by the federal government should
consult the relevant documents listed in Appendix A.
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54
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July 3, 1991
Owners of residential property located on a CERCLA site have
raised concerns that they would be responsible for performance
of a response action or payment of cleanup costs because they
fell within the definition of "owner" under CERCLA. Addi-
tionally, these owners were concerned that they might be
unable to sell their properties given the uncertainty of EPA
taking action against them or the new owners. EPA issued its
policy toward residential property owners to clarify when it
would not require these owners to perform or pay for cleanup.
The policy states that EPA, in the exercise of its enforcement
discretion, will not take an enforcement action against an
owner of residential property unless his activities lead to a
release or threat of release of hazardous substances, resulting in
EPA taking a response action at the property.
EPAs policy also applies to lessees of residential property
whose activities are consistent with the policy. In addition, the
policy applies to parties who acquire residential property
through purchase, foreclosure, gift, inheritance, or other form
of acquisition, as long as those persons' activities after acquisi-
tion are consistent with the policy.
Other Considerations
With respect to EPA's exercise of enforcement discretion under
this policy, it is irrelevant whether an owner of residential
property has or had knowledge or reason to believe that con-
tamination was present on the site at the time of purchase or
sale of the residential property.
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Threshold Criteria
An owner of residential property located on a CERCLA
site is protected if the owner:
• Has not and does not engage in activities that lead to a release or
threat of release of hazardous substances, resulting in EPA taking a
response action at the site;
• Cooperates fully with EPA by providing access and information when
requested and does not interfere with the activities that either EPA
or a state are taking to implement a CERCLA response action;
• Does not improve the property in a manner inconsistent with
residential use; and
• Complies with institutional controls (e.g., property use restrictions)
that may be placed on the residential property as part of the Agency's
response action.
For further information contact:
(202)564-5100
Office of Site Remediation Enforcement
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July 3, 1995
The contaminated aquifer policy addresses the CERCLA
liability of owners of property that contain an aquifer contami-
nated by a source or sources outside their property. These
owners were concerned that EPA would hold them responsible
for cleanup under CERCLA even though they did not cause
and could not have prevented the groundwater contamination.
The policy states that EPA, in an exercise of its enforcement
discretion, will not take an action under CERCLA to require
cleanup or the payment of cleanup costs provided that the
landowner did not cause or contribute to the contamination.
Other Considerations
If a third party who caused or contributed to the contamination
sues or threatens to sue the landowner, EPA may consider
entering into a de minimis landowner settlement with the
landowner covered under this policy.
For further information contact:
Elisabeth Freed - (202) 564-5117
Office of Site Remediation Enforcement
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Threshold Criteria
A landowner is protected by this policy if all of the follow-
ing criteria are met:
• The hazardous substances contained in the aquifer are present solely
as the result of subsurface migration from a source or sources outside
the landowner's property;
• The landowner did not cause, contribute to, or make the contamination
worse through any act or omission on his part;
• The person responsible for contaminating the aquifer is not an agent
or employee of the landowner, and was not in a direct or indirect
contractual relationship with the landowner (exclusive of conveyance
of title); and
• The landowner is not considered a liable party under CERCLA for
any other reason such as contributing to the contamination as a
generator or transporter.
This policy may not apply in cases where:
• The property contains a groundwater well that may influence the
migration of contamination in the affected aquifer; or
• The landowner acquires the property, directly or indirectly, from a
person who caused the original release.
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June 30, 1997
The lender liability policy clarifies the circumstances in which
EPA intends to apply, as guidance, the provisions of the 1992
CERCLA Lender Liability Rule ("Rule") and its preamble in
interpreting CERCLA's lender and involuntary acquisition
provisions. The Asset Conservation, Lender Liability, and
Deposit Insurance Protection Act of 1996 amended these
CERCLA provisions and generally followed the approach of
the Rule. EPAs subsequent lender policy explains that when
interpreting the amended secured creditor exemption, EPA will
treat the Rule and its preamble as authoritative guidance. For
example, the amendments do not clarify the steps that a lender
may take after foreclosure and still remain exempt from owner/
operator liability. In making liability determinations, EPA,
following its policy, will defer to the Rule (see box, page 60).
The 1996 amendment also validates the portion of the Rule that
addresses involuntary acquisitions by government entities.
EPAs policy clarifies that similar to the preamble of any valid
regulation, EPA will look to the preamble to the CERCLA
Lender Liability Rule as authoritative guidance on the meaning
of the portion of the Rule that addresses involuntary acquisitions.
For further information contact:
Bob Kenney - (202) 564-5127
Office of Site Remediation Enforcement
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Example
After foreclosure, a lender who did not "participate in
management" prior to foreclosure may generally:
• Maintain business activities;
• Wind up operations; and
• Take actions to preserve, protect, or prepare the property for sale
provided that the lender attempts to sell or re-lease the property
held pursuant to a sale or lease financing transaction, or otherwise
divest itself of the property in a reasonably expeditious manner
using commercially reasonable means. This timeframe will
generally be met if the lender, within 12 months of foreclosure,
lists the property with a broker or advertises it for sale in an
appropriate publication.
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November 12, 1996
Some properties may remain unused or underutilized because
potential property owners, developers, and lenders are unsure
of the environmental status of these properties. By issuing
comfort/status letters, EPA helps interested parties better
understand the likelihood of EPA involvement at a potentially
contaminated property. Although not intending to become
involved in typical private real estate transactions, EPA is
willing to provide a comfort/status letter when appropriate.
Comfort/status letters are intended to clarify the likelihood of
EPA involvement at a site; identify whether a party is protect-
ed by a statutory provision or discretionary enforcement policy;
or indicate the progress of a Superfund cleanup. If EPA is not
involved at the property, the party may be referred to the
appropriate state agency for further information.
Comfort letters address a particular set of circumstances and
provide whatever information is contained within EPAs data-
bases. Questions typically addressed by comfort letters
include:
Is the site or property listed in CERCLIS?
• Has the site been archived from CERCLIS?
Is the site or property contained within the defined boundaries of a
CERCLIS site?
Has the site or property been addressed by EPA and deleted from the
defined site boundary?
Is the site or property being addressed by a state voluntary cleanup
program?
Is EPA planning or currently performing a response action at the site1;
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Evaluation Criteria
EPA may issue a comfort letter upon request if:
• The letter may facilitate cleanup and redevelopment of potentially
contaminated property;
• There is the realistic perception or probability of incurring CERCL A
liability.
• There is no other mechanism available to adequately address the
party's concerns.
Are the conditions at the site or activities of the party addressed by a
statutory provision or EPA policy?
Is the site in CERCLIS but designated as state-lead or deferred to the
state agency for cleanup?
The agency generally uses four sample comfort letters to
respond to requests. The samples can be found in Appendix D.
A summary of the report on the effectiveness of comfort/status
letters may be found in Appendix C.
For further information contact:
Elisabeth Freed - (202) 564-5117
Office of Site Remediation Enforcement
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November 14, 1996
State and local empowerment to clean up sites is at the center
of EPA's Brownfields program. Many states have developed
voluntary cleanup programs that are designed to achieve pro-
tective cleanups at sites that are not on the NPL.
EPA regional offices have developed partnerships with states
that have voluntary cleanup programs through the negotiation
of Memoranda of Agreements (MO As). Through the MO A,
EPA and the interested state address state capabilities, pro-
grammatic areas, and the types of sites the state will include in
the MOA.
With the guidance, EPA intends to facilitate regional/state
MOA negotiations. The MOA delineates the roles and respon-
sibilities between a state and EPA with respect to sites being
cleaned up under the state's voluntary cleanup programs. This
interim guidance sets out six baseline criteria that are evaluated
before a region enters into an MOA with a state for its volun-
tary cleanup program. Through the completed and signed
MOA, EPA acknowledges the adequacy of the state voluntary
cleanup program. EPA also agrees that for sites addressed
under the MOA, it does not plan or anticipate taking a removal
or remedial action, unless EPA determines that there may be an
imminent and substantial danger to public health or welfare or
the environment.
Similar to CERCLA MO As, EPA is developing Memoranda of
Understanding (MOUs) between interested states and EPA
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regional offices when states region and state.
use an appropriate non-RCRA
authorized State authority to For further information contact:
Oversee the cleanup of Specific Matt Sander - (202) 564-7233
RCRA facilities Where Office of Site Remediation Enforcement
., , , ,, , r. Jennifer Wilbur-(202) 566-0797
considered mutually benefi- „ . , j o • , r> • t ot «-
J Outreach and Special Project Staff
cial, a regional office, working
with Headquarters, may enter
into a MOU to solidify expec-
tations and worksharing
arrangements between the
Program Evaluation Criteria
EPA may enter into a MOA that addresses a state voluntary
cleanup program if all of the following baseline criteria are
met:
• Opportunities for meaningful community involvement.
• Voluntary response actions are protective of human health and the
environment.
• Adequate resources to ensure that voluntary response actions are
conducted in an appropriate and timely manner, and that both
technical assistance and streamlined procedures, where appropriate,
are available from the state agency responsible for the voluntary
cleanup program.
• Mechanisms for the written approval of response action plans and a
certification or similar documentation indicating that the response
actions are complete.
• Adequate oversight to ensure that voluntary response actions are
conducted in such a manner to assure protection of human health
and the environment, as described above.
• Capability, through enforcement or other authorities, of ensuring
completion of response actions if the volunteering party(ies)
conducting the response action fail(s) or refuse(s) to complete the
necessary response action, including operation and maintenance or
long-term monitoring activities, if appropriate.
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November 6, 2002
EPA provides enhanced protection for a subset ofde minimis
waste contributors referred to as non-exempt de micromis
waste contributors. Non-exempt de micromis settlements may
be available to parties who generated or transported a minus-
cule amount of waste to a Superfund site, which is an amount
less than the minimal amount normally contributed by
de minimis parties. EPA's revised guidance defines eligible
non-exempt de micromis parties as those parties who fall
outside the statutory definition of a qualified exempt de
micromis (see Section 107(o)), but who may be deserving of
similar treatment based on case-specific factors. The presump-
tive cut-off for a non-exempt de micromis party is 110 gallons
(e.g., two 55 gallon drums) or 200 pounds of material contain-
ing hazardous substances. Regions have the flexibility to
consider higher amounts on a site-specific basis.
As a matter of policy, EPA does not pursue non-exempt
de micromis waste contributors for the costs of cleaning up a
site. If, however, a non-exempt de micromis party is threatened
with litigation by other parties at the site for the costs of
cleanup, EPA may enter into a zero dollar settlement with the
non-exempt de micromis party. Non-exempt de micromis
settlements provide both a covenant not to sue from the Agency
and contribution protection against other parties at the site.
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Refer to http://cfub.sdc-moses.com/compliance/policies/
cleanup/superfund/index.cfm for more information.
For further information contact:
Victoria Van Roden - (202) 564-4268
Office of Site Remediation Enforcement
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Expediting corrective action cleanup activities at facilities that
treat, store, or dispose hazardous waste is essential to protect-
ing human health and the environment and potentially making
these properties available for other uses. EPA Regions and
States authorized to implement the corrective action program in
lieu of EPA have developed innovative approaches to achieve
timely, protective, and efficient cleanups. This guidance
describes a number of enforcement approaches to expedite
corrective action (see box on page 68}. It provides examples of
approaches designed to reduce the amount of process and
procedures such as creative use of schedules and other federal
statutory cleanup authorities. It also provides specific ex-
amples of tools such as facility-initiated agreements that are
more flexible than typical corrective action enforcement orders.
For further information contact:
Karin Koslow - (202) 564-0771
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Expediting Components of Corrective Action
Creative Schedules and Deadlines - include time limits to
negotiate work plans, consent orders, and permits; fixed and
flexible schedules of compliance; and limiting work prod-
uct revisions.
Alternatives to a Collaborative Approach - encourage a
more cooperative response from the facility owner/operator
by presenting a less collaborative alternative such as a judi-
cial action or a unilateral administrative order (UAO).
Penalty Provisions - include penalty provisions in enforce-
ment documents, and collection of penalties when the facil-
ity fails to comply with the permit or order.
Other Federal Statutory Authorities - use other federal
authorities such as CERCLA §106(a).
Innovative Mechanisms to Require Corrective Action
Facility-Initiated Agreement
A facility-initiated agreement is a non-binding corrective
action agreement between EPA and a facility owner/opera-
tor. The purpose of the agreement is to allow a motivated
owner/operator to initiate and perform corrective action in a
manner that is consistent with all relevant laws and regula-
tions and avoid negotiating an enforceable order.
Streamlined Consent Order
A streamlined consent order is a pared-down, results-based
order. It contains enforceable deadlines and stipulated pen-
alties and lacks the traditional specificity as to how the owner/
operator should accomplish corrective action activities. In-
stead, it identifies performance standards that must be met
by specific dates. With this type of order, EPA's over-
sight role is minimized throughout the corrective action process.
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Innovative Mechanisms to Require Corrective Action
Unilateral Letter Order
The unilateral letter order is a legally binding, results-based
order that can be entered into under any RCRA statutory
administrative order authority. It is similar to a letter in that
it is written in a less formal format and style than a tradi-
tional order.
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70
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September 24, 1996
The goal of this memorandum is to continue to coordinate the
CERCLA and RCRA cleanup programs in order to eliminate
duplication of effort, streamline cleanup processes, and build
effective relationships with states and tribes. Three areas are
discussed in the memorandum to accomplish this goal: accep-
tance of decisions made by other remedial programs; deferral
of activities and coordination among RCRA, CERCLA and
state/tribal cleanup programs; and coordination of the specific
standards and administrative requirements for closure of regu-
lated units with other cleanup activities. Topics that are dis-
cussed in greater detail in the memorandum include program
deferral and coordination between programs with examples of
current approaches that are in use.
For further information contact:
Office of Site Remediation Enforcement
(202)564-5100
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72
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February 14, 2001
On November 8, 1996, the Office of Enforcement and Compli-
ance Assurance (OECA) issued its "Policy on the Issuance of
Comfort/Status Letters," which focuses on properties primarily
associated with Superfund sites. Since that time, regional staff
and private parties have inquired about the applicability of
that policy to property within or adjacent to facilities subject
to RCRA.
While EPA has not yet issued a formal policy on the use of
RCRA comfort/status letters, there may be sites subject to
RCRA requirements where the circumstances are analogous to
the circumstances at Superfund sites. Site-specific circum-
stances determine whether a comfort/status letter is appropri-
ate, but generally comfort/status letters may be appropriate at
brownfields associated with RCRA treatment, storage, and
disposal facilities; "generator-only" sites; or other property
where RCRA hazardous waste is discovered during cleanup
and/or redevelopment activities. This memorandum encour-
ages regional staff to use "comfort/status" letters at such
RCRA facilities, where appropriate, and provides some ex-
amples of regional RCRA comfort/status letters. In the RCRA
context, comfort/status letters relate only to EPAs intent to
exercise its RCRA corrective action response and enforcement
authorities. As with the Superfund policy, the "comfort" comes
from knowing what EPA knows about the property and what
EPAs intentions are in terms of a response action. Regional
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staff should look to the Superfund comfort/status letter policy
for general guidelines on the issuance of RCRA comfort/
status letters.
For further information contact:
Elisabeth Freed- (202) 564-5117
Office of Site Remediation Enforcement
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APPENDIXA
75
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76
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In addition to issuing policy and guidance documents that
provide tools to manage CERCLA and RCRA liability risks,
EPA has issued various policy and guidance documents that
promote faster investigation, cleanup, and redevelopment of
sites. Summarized below is just a small sampling of the many
policy and guidance documents that may be helpful to parties
interested in managing CERCLA and RCRA liability risks at
brownfields and other sites.
Copies of the policy and guidance documents can be obtained
from the Superfund and RCRA Hotline (800) 424-9346 or on
EPAs web pages.
Office of Site Remediation
Enforcement
www.epa.gov/compliance/
about/offices/osre.html
Brownfields
www.epa.gov/brownfields
Office of Solid Waste
www.epa.gov/osw
Superfund
www. epa.gov/superfund
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78
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CERCLA Orientation Manual
October 1992
The CERCLA Orientation Manual serves as a program orienta-
tion guide and reference document to the Comprehensive
Environmental Response, Compensation, and Liability Act.
The purpose of the manual is to assist EPA and state personnel
involved with hazardous waste remediation, emergency re-
sponse, and chemical and emergency preparedness. The organi-
zational and operational components of the Superfund program
also are described.
To order a hard copy:
National Center for Environmental Publications and Information
P.O. Box 42419
Cincinnati, OH 45242-2419
(513)489-8190
Document number: EPA542-R-92-005
National Contingency Plan (40 CFR Part 300)
The National Oil and Hazardous Substances Pollution Contin-
gency Plan, more commonly called the National Contingency
Plan (NCP), establishes a comprehensive process by which the
federal government responds to both oil spills and hazardous
substances. The NCP coordinates response efforts such as
accident reporting, spill containment, cleanup, and personnel
contacts.
To access on line:
www.epa.gov/oilspill/ncpover.htm
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This IsSuperfund -A Citizen's Guide to EPA's
Superfund Program
"This is Superfund" introduces basic issues regarding the
Superfund program. Topics addressed include how Superfund
sites are discovered and who pays for and is involved in clean-
ups. Key terms for understanding the Superfund program, such
as potentially responsible party and National Priorities List are
defined.
To order a hard copy:
National Center for Environmental Publications and Information
P.O. Box 42419
Cincinnati, OH 45242-2419
(513)489-8190
Document number: EPA540-K-99-006
To access on line:
www.epa.gov/superfund/whatissf/sfguide.htm
Community Reinvestment Act (CRA)
In 1997 Congress enacted the Community Reinvestment Act
requiring lenders to make capital available in low- and moder-
ate-income urban neighborhoods, thereby giving rise to con-
cerns over potential environmental and financial liability for
cleanups at sites by lenders, developers, and property owners.
The Community Reinvestment Act establishes creative initia-
tives for economic development while easing fears of financial
liability and regulatory burdens.
For further information contact:
Outreach and Special Projects Staff
(202)260-4039
To access on line:
www.epa.gov/swerosps/bf/html-doc/cra.htm
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Partial Deletion of Sites Listed on the NPL
November 1, 1995
EPA deletes sites from the NPL with state concurrence when
no further cleanup response is warranted under CERCLA.
Historically, only entire sites could be deleted from the NPL.
Under this policy, parties may submit petitions for partial
deletions to EPA. Additionally, the policy gives EPA regional
offices the flexibility to clarify which areas of NPL sites are
considered uncontaminated due to the completion of proper
investigation or cleanup actions.
Before a portion of a site can be considered for partial deletion
from the NPL, it must meet the same deletion criteria that an
entire site must meet. (See 40 CFR § 300.425).
For further information contact:
Office of Emergency and Remedial Response
(703)603-8960
To access on line:
www.epa.gov/swerffrr/documents/frl 10195 .htm
Guidance on Deferral of NPL Listing Determin-
ations While States Oversee Response Actions
May 3, 1995
The deferral guidance provides a framework for regional
offices, states, and tribes to determine the most appropriate,
effective, and efficient means to respond to hazardous waste
sites. Implementation is flexible in order to account for the
different capabilities of these acting parties.
For further information contact:
Office of Emergency and Remedial Response
(703)603-8960
To access on line:
www.epa.gov/swerosps/bf/html-doc/deferral.htm
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The NPL for Uncontrolled Hazardous Waste
Sites; Listing and Deletion Policy for Federal
Facilities
November 24, 1997
This document establishes an interim final revision to the
Agency's policy on placing federal facility sites on the National
Priorities List. The interim final policy revisions also apply to
federal facility sites that are RCRA-regulated facilities engaged
in treatment, storage, or disposal of hazardous waste.
For further information contact:
Federal Facilities Restoration and Reuse Office
(202)260-9924
To access on line:
www.epa.gov/fedrgstr/ERA-WASTE/1997/November/Day-24/O0518.htm
Policy Towards Landowners and Transferees of
Federal Facilities
June 13, 1997
This policy was created to address the potential liability con-
cerns of non-federal parties who acquire federal facility prop-
erty. Such acquisitions have become increasingly common
with the reduction in size and number of federal facilities such
as military bases. The intent of this policy is to alleviate
uncertainty regarding potential enforcement action by EPA
against landowners and transferees (i.e., lessees) of federal
facility properties.
For further information contact:
Federal Facilities Restoration and Reuse Office
(202)260-9924
To order a hard copy:
Superfund Docket Center at (703) 603-9232
the Superfund Hotline at (800) 424-9346,
or the National Technical Information Service (NTIS) at (800) 533-NTIS.
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EPA Guidance on the Transfer of Federal
Property by Deed Before All Necessary
Remedial Action Has Been Taken Pursuant to
CERCLA Section 120(h)(3).
June 16, 1998
This guidance, referred to as the "Early Transfer Guidance,"
describes EPA's process in determining a federally-owned
property's suitability for transfer to a private party prior to the
completion of all necessary cleanup action Concurrence of a
state's governor is required.
For further information contact:
Federal Facilities Restoration and Reuse Office
(202) 260-9924
To access on line:
www.epa.gov/swerffrr/documents/hkfm.htm
Road Map to Understanding Innovative
Technology Options for Brownfields
Investigation and Cleanup
June 1997
The Road Map identifies potential technology options available
at each of the basic phases involved in the characterization and
cleanup of brownfields sites: site assessment, site investigation,
cleanup options, and cleanup design and implementation. The
Road Map is not a guidance document. Rather, each section
describes the steps involved in the characterization and cleanup
of brownfields sites and connects those steps with available
technology options and supporting technology information
resources. Appendices in the Road Map include a list of
common contaminants found at typical brownfields sites, a
detailed guide to common environmental terms and acronyms,
and a list of state and EPA brownfields contacts.
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For further information contact:
Technology Innovation Office
(703)603-9910
To order a hard copy:
National Center for Environmental Publications and Information
P.O. Box 42419
Cincinnati, OH 45242-2419
Telephone: (513)489-8190
Document number: EPA 542-B-97-002
To access on line:
Second edition available at www.clu-in.org/roadmap/
Tool Kit of Information Resources for
Brownfields Investigation and Cleanup
June 1997
The Tool Kit provides abstracts and access information for a
variety of relevant resources, including electronic databases and
bulletin boards, newsletters, regulatory and policy guidance,
and technical reports. The Tool Kit describes the resources
identified in the Road Map, explains how to obtain the publica-
tions, and provides a "starter kit" of important information
resources to help brownfield stakeholders understand available
technology.
For further information contact:
Technology Innovation Office
(703)603-9910
To order a hard copy:
National Center for Environmental Publications and Information
P.O. Box 42419
Cincinnati, OH 45242-2419
Telephone: (513)489-8190
Document number: EPA542-B-97-001
To access on line:
Second edition available at www.clu-in.org/roadmap/
Soil Screening Guidance: Fact Sheet
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May 17, 1996
EPA's Soil Screening Guidance helps standardize and acceler-
ate the evaluation and cleanup of contaminated soils atNPL
sites where future residential land use is anticipated. To help
identify areas at sites on the NPL that need further investigation
or that may be screened out from further consideration, the
guidance provides a step-by-step methodology for determining
levels of soil contamination. The Soil Screening Guidance can
help speed up the investigation and cleanup of contaminated
sites, save time and money and make sites available for rede-
velopment more quickly.
Documents related to the guidance include the Soil Screening
Guidance User's Guide, Fact Sheet, and Technical Background
Document.
For further information contact:
Office of Emergency and Remedial Response
(703)603-8960
To access on line:
http://www.epa.gov/superfund/resources/so il7fact_sht.pdf
Land Use in the CERCLA Remedy Selection
Process Description
May 1995
EPA's land use directive promotes early discussions with local
land use planning authorities, local officials, and the public
regarding reasonably anticipated future uses of the property on
which a NPL site is located. The directive also encourages the
use of realistic assumptions regarding future land use in the
baseline risk assessment the development of remedial alterna-
tives, and the CERCLA remedy selection process.
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For further information:
Office of Emergency and Remedial Response
(703)603-8960
To access on line:
wvw.epa.gov/swero sp^f/pdf71and_use.pdf
Overview of Presumptive Remedies
Presumptive remedies are technologies or strategies that are
preferred for use at sites with specific common characteristics.
They have been developed to take advantage of Superfund's
extensive experience in remediating complex hazardous waste
sites. This experience has shown that certain remedies are
generally appropriate for sites with specific common character-
istics, e.g., type of contaminant present, type of previous
industrial use, and environmental medium affected. Relying on
presumptive remedies can streamline the site assessment,
remedy selection, and RD/RA processes. EPA has developed
presumptive remedy guidance for five types of site:
Municipal landfills
Volatile organic compounds ("VOCs") in soils
Metals in soils
Wood treatment
Contaminated ground water
EPA has been using presumptive remedies since 1993. As of
October 1997, presumptive remedies had been used or were
being used at 48 Superfund sites accounting for more than 80
operable units. Using presumptive remedies has a number of
advantages:
Saving time and money. EPA estimates that municipal landfills
implementing the presumptive remedy of containment, for example,
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experience time savings ranging from 36 to 56 percent, and cost
savings of up to 60 percent from streamlining the remedial
investigation/feasibility study process.
Promoting consistency in remedy selection. Using similar
remedies at similar types of sites saves time and allows cross-site
comparisons, which help to refine remedy implementation.
Improving predictability in remedy selection. When a
presumptive remedy is proposed, interested parties can review previous
actions at similar sites. This may increase their confidence in the
proposed remedy and speed up remedy selection.
Workload reduction. Implementation of presumptive remedies
has been tried and tested, accelerating the process of screening and
selecting remedies. Thus savings in time and money often may be
achieved at the same time workloads are reduced.
Expert support. RPMs can access presumptive remedy experts
who can provide information and support during remedy
implementation.
NCP compliance. Use of presumptive remedies advances NCP
remedy selection objectives by promoting consistency in remedy
screening and selection.
Relying on presumptive remedies is EPA policy. EPA guidance
states that presumptive remedies are to be used at all appropri-
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ate sites, except under unusual, site-specific circumstances.
This means that RPMs working at the types of sites listed
above should always investigate the possibility of implement-
ing a presumptive remedy.
For more information contact:
Office of Emergency and Remedial Response
(703)603-8960
To access on line:
http://www.epa.gov/superfund/resources/presump
Methodology for Early De Minimis Waste
Contributor Settlements under CERCLA
Section 122(g)(1)(A)
June 2, 1992
Under CERCLA section 122(g)(l)(A), EPA is authorized to
enter into settlements with minor waste contributors de minimis
parties of a site when practicable and in the public interest.
This policy provides guidance for early consideration and
proposals of such de minimis settlements, including the meth-
odology to facilitate settlement, and procedures for identifying
early de minimis candidates.
For further information contact:
Office of Site Remediation Enforcement
(202)564-5100
To access on line:
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/demin-secl22-
rpt.pdf
Policy for Municipality and Municipal Solid
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Waste CERCLA Settlements at NPL Co-
Disposal Sites
February 5, 1998
This policy supplements the Interim Policy on CERCLA
Settlements Involving Municipalities and Municipal Waste
issued September 30, 1989. Under this policy, EPA continues
the practice of generally not identifying generators and trans-
porters of municipal solid waste as potentially responsible
parties at NPL sites. The policy identifies a settlement meth-
odology for making settlements to MSW generators and trans-
porters seeking to resolve liability. It also identifies a pre-
sumptive settlement range for municipal owners and operators
of co-disposal sites on the NPL seeking to settle their
Superfund liability.
For further information conmtact:
Office of Site Remediation Enforcement
(202)564-5100
To access on line:
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/munic-solwst-
mem.pdf
General Policy on Superfund Ability to Pay
Determinations
September 30, 1997
The Superfund ability to pay (ATP) policy document explains
what is necessary for an acceptable ability to pay settlement in
Superfund cases. The main text of the policy document ad-
dresses general issues that apply to the ATP process and ATP
settlements. The policy document also contains two appendi-
ces that address issues specific to making ATP determinations
for individuals and businesses.
The policy document establishes an "undue financial hardship"
-------
standard for determining a party's ability to pay its share of
Superfund clean up costs and uses a two-part analysis to
determine what is an acceptable ATP settlement amount.
This policy is intended to apply outside of a formal bankruptcy
context because the bankruptcy laws provide other mechanism
to protect debtors from undue financial hardship or to allow
viable business to reorganize.
For further information contact:
Office of Site Remediation Enforcement
(202)564-5100
To access on line:
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/genpol-atp-
rpt.pdf
Fact Sheet: Revised De Micromis Guidance
June 4, 1996
This fact sheet describes EPA's efforts in reducing transaction
costs for very small volume contributors (de micromis parties).
It outlines cut-off ranges considered in assessing a party's
waste contribution and also discusses additional reference
documents that may be of interest to de micromis parties.
For further information contact:
Office of Site Remediation Enforcement
(202)564-5100
To access on line:
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/fs-
demicromis-rpt.pdf
Streamlined Approach for Settlements With De
-------
Minimis Waste Contributors under CERCLA Section
122(g)(1)(A)
July 30, 1993
This guidance encourages EPA regional offices to take a more
active role in facilitating de minimis settlements by establish-
ing minimum levels of information necessary before consider-
ing a de minimis settlement, and providing a methodology
for payment.
For further information contact:
Office of Site Remediation Enforcement
(202)564-510
To access on line:
http://www.epa.gov/compliance/resources/policies/cleanup/superfund/app-
deminimis-rpt.pdf
Advance Notice of Proposed Rulemaking:
Corrective Action for Releases from Solid
Waste Management Units at Hazardous
Waste Management Facilities
May 1, 1996
The action proposed in this Notice (ANPR) was a key step in
EPA's effort to improve the RCRA corrective action program.
The ANPR introduced EPA's strategy to develop corrective
action issues; provided a status report on the successes of the
program; and emphasized areas of flexibility within current
corrective action implementation. The ANPR encourages and
describes tools that create a consistent holistic approach to
clean up at RCRA facilities; establishes protective, practical
clean up expectations; shifts more of the responsibilities to
achieve clean up on those responsible for the contamination;
streamlines corrective action and reduces cost; and enhances
opportunities for timely, meaningful public participation. In
addition, the ANPR serves as the primary guidance document
-------
for the RCRA corrective action program.
For further information contact:
Office of Solid Waste
(703) 308-8404
Office of Site Remediation Enforcement
(202)564-5100
To access on line:
http://www.epa.gov/epaoswer/hazwaste/ca/resourc e/guidance/gen_ca/anpr.htm
RCRA Expanded Public Participation Rule
60 FR 63417
December 1995
EPA developed the RCRA Expanded Public Participation Rule
to empower communities to become more actively involved in
local hazardous waste management. This rule makes it easier
for citizens to become involved earlier and more often in the
process of permitting hazardous waste facilities. It also expands
public access to information about facilities. As a result, the
rule enables communities to become more active participants in
important local environmental decisions.
The RCRA Expanded Public Participation Rule also helps
facilities. Earlier participation can eliminate confusion or
delays in the permitting process that can occur when the public
is not involved until much later. This helps ensure that the
permitting process moves forward in a timely manner. By
fostering better relationships with communities, the rule also
can help improve facilities' images and reduce potential con-
flict. In addition, citizens are often able to provide valuable
information regarding local conditions for facilities to consider
in developing their permit applications. Furthermore, the rule is
very flexible—it identifies the basic requirements needed to
satisfy EPA's public participation goals and recommends
-------
additional activities that facilities might conduct.
For further information contact:
Office of Solid Waste
(703) 308-8404
To access on line:
http: //www. epa. go v/epao swer/haz waste/permit/pubpart/manual .htm
Corrective Action Oversight
February 7, 1992
Oversight in general is the management of all activities related
to corrective action at a site. The oversight approach discussed
in this guidance encourages project managers and owners/
operators to develop a plan that allows for the appropriate level
of oversight rather than a pre-determined "one size fits all"
process. The guidance emphasizes that the project manager
should base the oversight plan on facility-specific conditions
and owner/operator capabilities and develop an appropriate
level of oversight that will ensure timely, efficient, and protec-
tive cleanups.
For further information contact:
Office of Site Remediation Enforcement
(202)564-5100
To access on line:
http://www.epa.gov/Compliance/about/offices/osre.html
The RCRA Public Participation Manual
EPA designed this document as a "user's manual." It explains
how public participation works in the RCRA permitting process
(including corrective action), and how citizens, regulators, and
industry can cooperate to make it work better. It also describes
a wide assortment of activities to enhance public participation,
and includes several appendices that provide lists of contacts,
sources of information, and examples of public participation
-------
tools and activities. The 1996 RCRA Public Participation
Manual supersedes the 1993 RCRA Public Involvement
Manual.
For further information contact:
Office of Solid Waste
(703) 308-8404
To access on line:
http: //www. epa.gov/epao swer/haz waste/pemit/pubpart/manual. html
The Handbook of Groundwater Protection
and Cleanup Policies for RCRA Corrective
Action
The Handbook of Groundwater Protection contains the Envi-
ronmental Protection Agency's (EPAs) latest interpretation of
policies on such topics as cleanup goals, the role of groundwa-
ter use, point of compliance, source control, and monitored
natural attenuation. This Handbook ties 15 different topics
together with an overall Groundwater Protection and Cleanup
Strategy that emphasizes a phased, results-based approach to
cleaning up contaminated groudwater.
For further information contact:
Office of Solid Waste
(703) 308-8404
To access online:
http://www.epa.gov/correctiveaction/resource/guidance/gw/gwhandbk/gwhbfinl.pdf
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APPENDIX B
95
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96
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Eligibility for Brownfields Funding
September 2002,
Introduction
President George W. Bush
signed, the Small Business
Liability Relief and
Brownfields Revitalization
Act into law on January 11,
2002. The Brownfields Law
expands potential federal
financial assistance for
brownfield revitalization,
including grants for
assessment, cleanup, and job
training. The new law also
limits the liability of certain
contiguous property owners
and prospective purchasers
of brownfield properties, and
clarifies innocent landowner
defenses to encourage
revitalization and reuse of
brownfield sites. The
Brownfields Law also includes
provisions to establish and
enhance state and tribal
response programs, which will
continue to play a critical role in
the successful cleanup and
revitalization of brownfields.
This summary highlights the
eligibility requirements of the
new law.
Type of Grant
Eligible Entities
Brownfields assessment
grants
Brownfields revolving loan
fund grants
Brownfields direct cleanup
grants
To be used only for the
remediation of properties
owned by the eligible party
"Eligible entities" as defined in the
new Brownfields Law
"Eligible entities" as defined in the
new Brownfields Law
and Nonprofit Organizations
(note: EPA will use the
definition of nonprofit organizations
contained in Section 4(6) of the
Federal Financial Assistance
Management Improvement Act of
1999, Public Law 106-107)
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Eligible Entities and
Properties under the New
Law
There are two aspects to
brownfields funding
eligibility:
1) Eligible Entities
(who can receive a
brownfields grant)
2) Eligible Properties
(which properties are
eligible for funding).
Parties eligible for brownfields
grants include:
The new Brownfields Law
defines "Eligible Entities"
General purpose unit
of local government
(note: for purposes of
the brownfields grant
program, EPA defines
general purpose unit of
local government as a
"local government" as
that term is defined
under 40 CFR Part 31)
Land clearance
authority or other
quasi -governmental
entity that operates
under the supervision
and control of or as an
agent of a general
purpose unit of
localgovernment
• Government entity
created by a state
legislature
Regional council or
group of general
purpose units of local
government
Redevelopment
agency that is
chartered or otherwise
sanctioned by a state
Statelndian tribe other
than in Alaska (note:
intertribal Consortia
are eligible for
funding in accordance
with EPAs policy for
funding intertribal
consortia)
Alaska native
Regional Corporation
and an Alaska Native
Village Corporation
and the Metlakatla
Indian community
Under the new
Brownfields Law, Eligible
Properties include:
Properties that meet
the definition of a
Brownfield Site under
the new Brownfields
Law
-------
• Properties for which
EPA has made a
property-specific
funding determination,
based upon the criteria
provided in the new
Brownfields Law.
The new Brownfields Law
defines a "BrownfieldSite"
to mean: "...real property, the
expansion, redevelopment, or
reuse of which may be
complicated by the presence or
potential presence of a
hazardous substance, pollutant,
or contaminant." Brownfield
sites include residential, as well
as commercial and industrial
properties.
Property-Specific
Determinations of
Eligibility
Property-Specific
Determinations: The
Brownfields Law excludes
certain types of property from
funding eligibility, unless EPA
makes a property-specific
funding determination:
Facilities subject to
planned or ongoing
CERCLA removal
actions.
Facilities that are
subject to unilateral
administrative orders,
court orders,
administrative orders
on consent or judicial
consent decree or to
which a permit has
been issued by the
United States or an
authorized state under
the Solid Waste
Disposal Act (as
amended by the
Resource Conservation
and Recovery Act
(RCRA)), the Federal
Water Pollution
Control Act (FWPCA),
the Toxic Substances
Control Act (TSCA),
or the Safe Drinking
Water Act (SDWA).
Facilities subject to
corrective action orders
under RCRA (sections
3004(u) or 3008(h))
and to which a
corrective action
permit or order has
been issued or
modified to require the
implementation of
corrective measures.
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Land disposal units 1.
that have filed a
closure notification
under subtitle C of 2.
RCRA and to which
closure requirements
have been specified in
a closure plan or
permit.
• Facilities where there
has been a release of
polychlorinated
biphenyls (PCBs) and
are subject to
remediation under
TSCA.
• Portions of facilities
for which funding for
remediation has been
obtained from the
Leaking Underground
Storage Tank (LUST)
Trust Fund.
Criteria for Property
Specific Funding
Determinations:
The new legislation allows
EPA to award financial
assistance to an
eligible entity for
assessment or clean up
activities at the site, if
it is found that
financial assistance
will:
Protect human health
and the environment,
and
Either:
promote economic
development; or
enable the creation of,
preservation of, or
addition to parks,
green ways,
undeveloped property,
other recreational
property, or other
property used for
nonprofit purposes.
Facilities subject to
unilateral
administrative orders,
court orders,
administrative orders
on consent or judicial
consent decree issued
to or entered into by
parties under
CERCLA.
Facilities that are
subject to the
jurisdiction, custody or
control of the United
States government.
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Facilities not Eligible for
Brownfields Funding:
Facilities listed (or
proposed for listing) on
the National Priorities
List (NPL).
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102
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Summary of Brownfields Grants
Guidelines
September 2002
President George W. Bush
signed, the Small Business
Liability Relief and Brownfields
Revitalization Act into law. on
January 11,2002. The
Brownfields Law expands
potential federal financial
assistance for brownfield
revitalization, including grants
for assessment, cleanup, and job
training. The new law also
limits the liability of certain
contiguous property owners and
prospective purchasers of
brownfield properties, and
clarifies innocent landowner
defenses to encourage
revitalization and reuse of
brownfield sites. The
Brownfields Law also includes
provisions to establish and
enhance state and tribal
response programs, which will
continue to play a critical role in
the successful cleanup and
revitalization of brownfields.
This summary highlights the
new grant guidelines and select
provisions of the new law
relevant to applicants.
Fiscal Year 2003 Grant
Guideline Highlights
The FY03 Brownfields
Grant Guideline is a
document that provides
applicants with
information on
requirements for
applying for three types
of Brownfields grants:
assessment grants,
revolving loan fund
(RLF) grants, and, new
in FY03, direct cleanup
grants. These grants are
authorized under Subtitle A
of the new Brownfields law
to promote the cleanup and
redevelopment of
brownfields by providing
financial assistance for
revitalization efforts. Job
training grant guidelines and
Grant Funding Guidance for
State and Tribal Response
programs under Subtitle C of
the Brownfields law are
being published separately.
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The FY03 Brownfields
grant guidelines reflect a
new approach. The
proposal process has also been
streamlined to allow
applicants to prepare an initial
proposal for funding under
three different types of grants:
assessment, RLF anddirect
cleanup. EPA will review the
applicants' Initial Proposals,
and, after ranking, will invite a
subset of these applicants to
submit to EPA their final
proposals.
Eligible Entities
A wide range of
governmental entities are
eligible for assessment,
RLF and direct cleanup
grants. Eligible
governmental entities include
states, tribes, local
governments, councils of
government, and state
chartered redevelopment
agencies.
In addition, the new
Brownfields law provides
two new ways in which
non profit organizations
may receive funding to
clean up sites that they own.
Non profit organizations may
apply directly to EPA for
cleanup grants for sites that
they own, In addition,
governmental RLF grant
recipients may use their
funding to award cleanup
subgrants to other eligible
entities, which now includes
certain non profit
organizations. Cleanup grants
and RLF subgrants, unlike
RLF loans, do not need to be
repaid.
Grant Funding Amounts
Eligible governmental
entities may apply for up
$400,000 in assessment
funding-up to $200,000
of which has to be used
to address sites
contaminated by
hazardous substances,
pollutants or
contaminants, and up to
$200,000 of which has to
be used to address sites
contaminated by
petroleum. Applicants may
request a waiver of the
$200,000 site limits up to a
$350,000 site limit, based on
the anticipated level of
-------
contamination, size, or
status of ownership. Due to
budget limitations, no entity
may apply for funding
assessment activities in
excess of $700,000.
Eligible governmental
entities may apply for
up to $1 million for an
initial RLF grant.
Coalitions-groups of
eligible entities-may
apply together under
one grant recipient for
up to $1 million per
eligible entity. Revolving
loan funds generally are
used to provide no-interest
or lower-interest loans for
brownfields cleanups. The
new Brownfields law
requires the applicant to
contribute a 20 percent cost
sharing for RLF awards;
this cost share may be in the
form of money or, labor,
material or services that
would be eligible and
allowable costs under the
RLF grant. Applicants may
requests waivers of the cost
share requirements based on
hardship, as described in the
guideline.
Eligible governmental
entities may apply for up
to $200,000 per site for
cleanup grants for sites
they own. Due to budget
limitations, no entity should
apply for cleanup grants at
more than five sites. Cleanup
grants also require the applicant
to contribute a 20 percent cost
sharing for cleanup grant
awards; this cost share may be
in the form of money, labor,
material or services that would
be eligible and allowable costs
under the cleanup grant..
Applicants may requests
waivers of the cost share
requirements based on
hardship, as described in the
guideline.
Grant Application
Schedule and Details
Initial Proposals must be
postmarked or sent via
registered or tracked mail
to the appropriate
Regional representative by
November 27, 2002 with a
copy to Headquarters.
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Applicants are encouraged to
work with their EPA Regional
Brownfields Contacts in the
preparation of their Initial
Proposals.
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CERCLA Liability and the Small
Business Liability Relief and
Brownfields Revitalization Act
September 2002
Title I - Small Business
Liability Protection
The new Brownfields Law
provides liability protection
for certain businesses and
municipal waste
contributors to NPL sites:
CERCLA liability
exemption for certain
small volume waste
contributors to NPL sites
(i.e., contributors of less
than 110 gallons or 200
pounds), if waste has not
contributed significantly
to cost of response action.
CERCLA liability
exemption for certain
contributors of municipal
solid waste (MSW)(e.g.,
certain residential
property owners, small
businesses, non-profits), if
MSW has not contributed
significantly to cost of
response action
Shifts court costs and
attorneys fees to a private
party if a private party
loses a Superfund
contribution action
against de micromis or
municipal solid waste exempt
party.
EPA anticipates issuing
guidance related to the de
micromis and MSW exemptions
by December, 2002.
Title II - Brownfields
Revitalization and
Environmental Restoration
- Subtitle B
The new Brownfields Law
provides that, under certain
circumstances, simply owning
contaminated property does not
result in CERCLA liability.
The law clarifies Superfund
liability for:
• Contiguous Property Owners
• Bona Fide Prospective
Purchasers
• Innocent Landowners.
Contiguous Property
Owners: property owners
owning contaminated property
-------
contiguous to a Superfund site
are exempt from CERCLA
liability, if the owner:
is not otherwise liable for
the contamination and is not
affiliated with a liable party
takes reasonable steps with
respect to hazardous
substances on the property,
cooperates and provides
assistance and site access,
complies with land use
controls, site information
requests, and legal notice
requirements
conducts "all appropriate
inquiry" at time of purchase
and demonstrates they did
not know or have reason to
know of contamination.
Prospective Purchasers:
For purchasers buying
contaminated property after
date of enactment, potential
CERCLA liability is limited
to a "windfall lien" for
increase in value of the
property attributable to EPA's
response action, provided the
purchaser:
• is not otherwise liable for
the contamination and is not
affiliated with a liable party
does not impede cleanup,
exercises appropriate care
by taking reasonable steps,
cooperates and provides
assistance and site access,
complies with land use
controls, site information
requests, and legal notice
requirements,
and conducts "all
appropriate inquiries"
prior to purchase
EPA issued guidance on its
approach to implementing
the Bona Fide Prospective
Purchaser amendments
in view of the limitation on
liability for prospective
purchasers. See, Memorandum
from Barry Breen, "Bona Fide
Prospective Purchasers and the
New Amendments to CERCLA."
(May 31, 2002). Prior to the
amendments, prospective
purchasers needed to enter into
prospective purchaser agreements
(PPAs) with EPA to address their
CERCLA liability concerns. In its
May 31 guidance EPA explained
that by providing a statutory
liability limitation, Congress had
made the need for PPAs
unnecessary in most instances and
identified those limited
circumstances where they might
be appropriate.
EPA is planning on issuing
guidance on implementation of
the "windfall lien" provision in
December 2002.
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Use of Alternative Dispute
Resolution in Enforcement and
Compliance Activities
September 2001
Introduction
Alternative Dispute Resolu-
tion (ADR) is a tool which
enhances a negotiation pro-
cess and is a standard compo-
nent of EPA's enforcement
and compliance program.
ADR should be considered
at any point when negotiations
are possible. This fact sheet
answers common questions
about the use of ADR in
enforcement and compliance
activities.
What is ADR?
ADR is a short-hand term for
a set of processes which assist
parties in resolving their
disputes quickly and effi-
ciently. Central to each
method of ADR is the use of
an objective third party or
neutral. In this fact sheet the
use of the term "ADR" refers
to all ADR processes. The
methods used by the Agency
include the following:
Convening is the first step in a
dispute resolution process. A
neutral party explores with the
parties whether they are
interested in using ADR, makes
a recommendation about the
most appropriate way to
proceed, and assists the parties
in selecting a neutral.
• Mediation is the primary ADR
tool used by EPA. It is a
voluntary and informal process
in which the disputing parties
select a neutral third party to
assist them in reaching a
negotiated settlement. Since
mediators have no power to
impose a solution on the
parties, they help disputants
shape solutions to meet the
interests and needs of all
parties. In mediation, EPA
retains its control of the case as
well as its settlement authority.
Allocation is the use of third
party-neutrals to assist the
parties in determining their
relative responsibilities for
Superfund site costs.
Fact-finding, often used in
technical disputes, involves the
-------
investigation of issues by a
neutral party who gathers
information and prepares a
summary of key issues. (Fact
finding is often used as part of a
negotiation process.)
Neutral Evaluation is a
process which is useful for
cases involving complex
scientific and technical issues.
A neutral party conducts an
evaluation and provides the
disputants with an assessment
of the strengths and weaknesses
of each party's case and a
prediction about the potential
outcome of the case.
Mini-trial is a process in which
the decision-makers for each
side of a dispute hear a
summary of the best case
presented by the attorneys for
each side. Folio wing the
presentations, the principals
engage in negotiations, often
with the assistance of the
neutral party.
Arbitration is the process in
which a neutral party considers
the facts and arguments
presented by parties in a dispute
and renders a binding or non-
binding decision using
applicable law and procedures.
Facilitation is a process in
which parties with divergent
views use a neutral facilitator to
improve communications and
work toward agreement on a
goal or the solution to a
problem. The facilitator runs
the process, helping the parties
set ground rules, design
meeting agendas, and
communicate more effectively.
Partnering is a collaborative
process in which the
participants commit to work
cooperatively to improve
communications and avoid
disputes in order to achieve a
common goal. Typically, a
neutral helps the participants
create a partnering agreement
that defines how they will
interact and what goals they
seek to achieve.
What is EPA's policy on
the use of ADR in
enforcement actions?
EPA has utilized ADR in
appropriate enforcement and
compliance activities since
1987. The Administrative
Dispute Resolution Act of
1996, (P.L. 104-320), 5
U.S.C. 571 (ADRA), which
encourages the use of ADR in
all federal disputes, strength-
ened EPA's enforcement and
compliance ADR policy.
Each Federal district court is
required to establish its own
ADR program and to encour-
age and promote the use of
-------
ADR in its district (Alterna-
tive Dispute Resolution Act of
1998(P.L. 105-315), 28
U.S.C. 651).
What is EPA's experience
with ADR in enforcement
actions?
The Agency has used ADR to
assist in the resolution of over
200 enforcement-related
disputes to date. ADR has
been used in negotiations
arising under every environ-
mental statute that EPA
enforces. Mediated negotia-
tions have ranged from
two-party Clean Water Act
(CWA) cases to Superfund
disputes involving upwards of
1200 parties.
Participants in the 1990
ADR pilot for Superfund
cases reported the following
benefits:
constructive working
relationships were developed
obstacles to agreement and the
reasons therefor were quickly
identified
mediators helped prevent
stalemates
costs of preparing a case for
DOJ referral were eliminated.
ongoing relationships were
preserved.
What are the benefits of
using ADR in
enforcement actions?
It lowers the transaction costs
for resolving the dispute.
Mediated negotiations tend to
focus more on resolving real
issues, rather than posturing,
and are less likely to get
derailed by personality
conflicts.
In mediation, the parties are
more likely to identify
settlement options that are
tailored to their particular
needs.
It alleviates the time-consuming
burdens on EPA of organizing
negotiations because a third
party neutral is available to
handle these tasks. This is
particularly valuable in multi-
party cases.
How do I know that ADR
is appropriate for my
enforcement case?
If you can answer the follow-
ing questions affirmatively,
then ADR may be appropriate
for your case:
Are there present or foreseeable
difficulties in the negotiation
which will require time or
resources to overcome in order
-------
to reach settlement?
Is your case negotiable, i.e. no
precedent-setting issues are
involved?
Is there enough case
information to substantiate the
violations)?
Is there sufficient time to
negotiate in light of court or
statutory deadlines, or are the
parties willing to sign a tolling
agreement (an understanding
that a statutory deadline for
starting a lawsuit will be
extended)?
What ADR services are
available for
enforcement/compliance
disputes?
Assistance for the use of ADR
for enforcement and compli-
ance cases is available by
phone at any time from the
Headquarters and/or Regional
Enforcement/Compliance
ADR Specialists, identified at
the end of this fact sheet.
EPA has an indefinite services
contract for dispute resolution
services with a management
consulting firm that focuses
on environmental dispute
resolution and public partici-
pation. Through in-house
expertise and contract support
EPA can also provide assis-
tance in: confidential consul-
tation regarding use of ADR
in specific enforcement/
compliance cases; assistance
in the location, selection and
contracting of ADR profes-
sionals; provision of the entire
range of ADR services and
logistical support of consen-
sus building processes.
What funding is available
to pay for EPA's share of
ADR expenses in these
enforcement/compliance
cases?
Funding for ADR services
needs to come from each
Region's extramural funds. In
the Superfund program there
is a delivery order funded and
managed by the Office of Site
Remediation Enforcement
(OSRE) for limited convening
services for enforcement and
compliance disputes.
What contract
mechanisms are available
to obtain ADR services
for enforcement/
compliance related
activities?
The following options are
available: (1) the consensus
and dispute resolution support
-------
services contract managed by
the Consensus and Dispute
Resolution Program (Debbie
Dalton, Project Officer, 202-
564-2913), (2) expedited sole
source contracting authorized
by recent changes to Federal
Acquisition Regulations
(FAR), and (3) the Regional
Enforcement Support Services
(ESS) contract, depending on
the language in the contract.
To date, the dispute resolution
support services contract has
been the primary vehicle used
by the ADR program.
A procurement request and
other contracting documents
must be submitted for each
case to the appropriate con-
tract offi ci al. It take s approxi -
mately 30 days to process the
contracting documents
through the contracts office.
Models of an ADR procure-
ment request and other
contracting documents for
enforcement actions are
available on disk from the
HQ ADR Team or your
regional ADR Specialist.
Each Region should designate
a lead staff contact for con-
tract coordination.
Who manages the
contract with the
selected ADR neutral in
an enforcement/
compliance case?
Each site-specific use of ADR
in an enforcement case re-
quires either a separate con-
tract or task order which is
managed by the nominating
region. To establish a contract
or task order, the contracts
office requires the designation
of a Task Order Project
Officer (TOPO). The Reme-
dial Project Manager (RPM),
On Scene Coordinator
(OSC), or other person famil-
iar with the case may serve
as a TOPO.
What are the
requirements for
expedited sole source
hiring of neutrals in
enforcement/compliance
cases?
The FAR allows for expedited
sole source contracting in
enforcement actions when
the anticipated value of
neutral services does not
exceed $2500, and the price
is reasonable1. Contracts
-------
where the anticipated value
exceeds $2500, but is less
than $100,000 are set aside
for small business concerns2.
If the TOPO receives only one
offer from a small business
concern, the contract should
be awarded to that firm. If
there are no acceptable
offers, the set aside is with-
drawn. Sole source contract-
ing can then be used if only
one source is reasonably
available3, but the TOPO
must provide a written expla-
nation for the absence of
competition4.
How do I identify
appropriate neutrals for
my enforcement/
compliance case?
EPA has developed a National
Roster of Environmental
Dispute Resolution and
Consensus Building Profes-
sionals in conjunction with
the U.S. Institute for Environ-
mental Conflict Resolution
(USIECR)5. This Roster will
be one of several sources of
information which federal
agencies can use to identify
appropriately experienced
conflict resolution profession-
als for use in resolving envi-
ronmental and natural re-
source disputes or issues in
controversy under the ADRA
of 1996 and the Negotiated
Rulemaking Act of 1996. The
Roster can be used to identify
neutrals for an enforcement
action "when the ADR Ser-
vices Contract is not appropri-
ate, cost effective or timely."
Roster information is avail-
able on the USIECR website,
http: //www. ecr. gov. ADR
specialists and others who
have been trained will be able
to obtain information from the
Roster for case teams.
How does a case team in
an enforcement/
compliance activity
select and contract with
an ADR neutral for his/
her services? How long
does this take?
The selection of an appropri-
ate ADR neutral for an en-
forcement/compliancecase is
by agreement of all parties to
the dispute. The regional/
DOJ case team represents the
U.S. in this decision. Assis-
tance in identifying and
considering appropriate
neutrals for an enforcement
action is available from the
-------
HQ ADR Team or through
EPA's contractor.
The services of the selected
ADR neutral are obtained by
all the parties to a dispute by
entering a contract with the
neutral. The contract, gener-
ally called a "mediation
agreement," covers arrange-
ments for sharing and paying
the mediator's fees, the role of
the mediator, confidentiality
issues, and the right of any
party to withdraw from the
mediation. An EPA approved
model mediation agreement is
available on disk from your
regional ADR Specialist or
from the HQ ADR Team. You
should use this as the basis for
your negotiations in enforce-
ment cases.
The agreement is negotiated
by the case team and the
private parties, with assis-
tance, if needed, from the HQ
ADR Team or an ADR expert
from Marasco Newton.
Experience has shown that the
model agreement is generally
acceptable to private parties
and it often takes no longer
than two weeks to obtain a
signed agreement.
Does a Region have the
authority to sign the
agreement with the ADR
professional?
Yes. Once the funding has
been committed by the
Agency, the Region, generally
the staff attorney, signs the
agreement for EPA.
How much does it
usually cost to use ADR
in an enforcement/
compliance case?
The cost of ADR services in
an enforcement/compliance
case is determined by several
factors, including the ADR
professional's fees and travel,
costs of meeting space, and
the length of settlement
discussions. All costs associ-
ated with the selected ADR
process are shared equitably
among the parties. EPA staff
1. FAR Subpart 6.001 (a)
FAR Subpart 13.202 (a) (2)
2. FAR Subpart 19.5
3. FAR Subpart 13.106-1 (b)( 1)
4. FAR Subpart 13.106-3(a)(2)
5. The Institute is affiliated with the
Morris K. Udall Foundation in
Tucson^Vrizona
-------
should keep the Agency's
share payment commensurate
with EPA's interest in the
ADR process. At present, the
Agency may pay a portion of
the costs of the convening
process and up to 50% of the
ADR costs in an enforcement/
compliance activity, where the
Agency is a party to the
selected ADR process. The
Agency may, in appropriate
circumstances, help to defray
private parties' costs of
obtaining ADR services in
Superfund allocation
deliberations. The Agency
may pay up to 20% of the
costs of ADR services in
these situations.
The average costs of some
specific ADR processes are as
follows:
Allocation is generally between
$50,000 and $75,000;
Convening costs are
approximately $25,000; and
Community involvement cases
are usually between $100,000
and $150,000 depending on the
number of stakeholders and the
complexity of the issues.
Why must the costs
associated with using
ADR in enforcement/
compliance activities be
shared equitably by the
parties?
To assure the neutrality of the
ADR professional involved, it
is important that all parties to
the dispute share the costs to
the greatest extent possible.
This creates a more equal
ground and prevents parties
from feeling any bias in an
enforcement/compliance
action. Some parties can
provide in-kind contributions
towards the cost of ADR when
they are unable to provide an
equal share of the costs. In all
other cases, EPA must share
the costs of a neutral's services
with the other parties to an
enforcement/compliance
dispute.
Are there specific
guidelines for the use of
arbitration in EPA
enforcement and
compliance activities?
Section 575 of the ADRA
permits the use of binding
arbitration in an enforcement
action with the consent of all
parties and eliminates the
Agency's right to vacate an
award issued within 30 days.
-------
However, prior to using
binding arbitration, the
Agency must have issued
guidance on the appropriate
use of arbitration6. The act
has two other prerequisites: 1)
arbitration agreements7 must
specify a maximum award,
and 2) the person offering to
use arbitration must have
settlement authority. At
present EPA may enter into
binding arbitration for
Superfund cost recovery
claims not exceeding
$500,000 (excluding interest)
under CERCLA Section
122(h)(2), 42U.S.C.
9622(h)(2) and 40 C.RR. 304
(1996). This regulation
requires that the Administrator
and one or more Potentially
Responsible Parties (PRPs)
submit a joint request for
arbitration.
Are government
payments made to an
ADR professional in a
Superfund action tracked
and recoverable as site
costs for cost recovery
purposes?
Expenditures by the Agency
in support of the use of ADR
in a Superfund action are cost
recoverable expenses,
reimbursement of which may
be obtained through regional
settlements or legal action.
Regions may exercise their
enforcement discretion
regarding recovery of ADR
expenditures. Each ADR case
is assigned a separate task
order or contract to allow for
site tracking of ADR
expenses.
Is training available for
the use of ADR in
enforcement actions?
Yes. A one day overview
training on the use of ADR in
enforcement negotiations is
offered in all of the regions.
Furthermore, there are ADR
components in several other
popular EPA training courses.
If you are interested in the
training schedule for the
current year call NETI at
(202-564-6069).
6. 40 C.F.R. 304
7. Agreements to arbitrate are
enforceable pursuant to 9 U.S.C. 4
-------
Enforcement/Compliance ADR Specialists
NAME PHONE* FAX*
Region 1
Ellie Tonkin
Marcia Lamel
Doug Thompson
Andrea Simpson
Catherine Garypie
Region 2
Tom Lieber
Janet Conetta
Region 3
Pat Hilsinger
Joan A. Johnson
Region 4
Lisa Ellis
Region 5
JohnTielsch
Beth Henning
Region 6
Jim Dahl
Manisha Patel
Region 7
Cheryle Micinski
Region 8
Maureen O'Reilly
Karen Kellen
Arnie Ondarza
Region 9
Kim Muratore
Marie Rongone
Allyn Stern
Region 10
TedYackulic
617/918-1726
918-1778
918-1543
918-1738
918-1540
212/637-3158
637-4417
215/814-2642
814-2619
404/562-9541
312/353-7447
31 2/886-5892
214/665-2151
665-2770
913/551-7274
303/312-6402
31 2-651 8
31 2-6777
41 5/744-2373
744-1313
744-1372
206/553-1218
HQ Enforcement/Compliance ADR
David Batson 202/564-51 03
Lee Scharf 564-5143
Phil Page 564-421 1
918-1809
918-1809
918-1809
918-1809
918-1809
637-31 1 5
637-4429
814-2601
814-3001
562-9486
886-71 60
353-91 76
665-21 82
665-6660
551 -7925
312-6409
312-6953
312-7025
744-1917
744-1041
744-1041
553-01 63
Team
564-0093
564-0091
564-0091
-------
Policy Toward Owners of Property
Containing Contaminated Aquifers
United States Environmental Protection Agency
Office of Enforcement and Compliance Assurance
November 1995
This fact sheet summarizes a new EPA policy regarding
groundwater contamination. The "Policy Toward Owners of
Property Containing Contaminated Aquifers" was issued as
part of EPA's Brownfields Economic Redevelopment Initiative
which helps states, communities, and other stakeholders in
economic redevelopment to work together in a timely manner
to prevent, assess, safely clean up, and sustainably reuse
brownfields. Brownfields are abandoned, idled, or under-used
industrial and commercial facilities where expansion or
redevelopment is complicated by real or perceived environ-
mental contamination.
EPA issued this policy to help owners of property to which
groundwater contamination has migrated or is likely to mi-
grate from a source outside the property. This fact sheet is
based on EPA's interpretation of the Comprehensive Environ-
mental Response, Compensation, and Liability Act
(CERCLA, commonly known as Superfund) and existing EPA
guidance. Under the policy, EPA will not take action to com-
pel such property owners to perform cleanups or to reimburse
the agency for cleanup costs. EPA may also consider de
minimis settlements with such owners if they are threatened
with law suits by third parties.
Background
Approximately eighty-five percent of the sites listed on the
National Priorities List involve some degree of groundwater
contamination. The effects of such contamination are often
widespread because of natural subsurface processes such as
-------
infiltration and groundwater
flow. It is sometimes difficult
to determine the source of
groundwater contamination.
Under Section 107(a)(l) of
CERCLA (also found at 42
United States Code §
9607(a)(l)), any "owner" of
contaminated property is
normally liable regardless of
fault. This section of
CERCLA creates uncertainty
about the liability of owners
of land containing contami-
nated aquifers who did not
cause the contamination. This
uncertainty makes potential
buyers and lenders hesitant to
invest in property containing
contaminated groundwater.
The intent of the Contami-
nated Aquifer Policy is to
lower the barriers to the
transfer of property by reduc-
ing the uncertainty regarding
future liability. It is EPA's
hope that by clarifying its
approach towards these
landowners, third parties will
act accordingly.
Policy Summary
EPA will exercise its enforce-
ment discretion by not taking
action against a property
owner to require clean up or
the payment of clean-up costs
where: 1) hazardous sub-
stances have come to the
property solely as the result
of subsurface migration in an
aquifer from a source outside
the property, and 2) the
landowner did not cause,
contribute to, or aggravate
the release or threat of
release of any hazardous
substances. Where a property
owner is brought into third
party litigation, EPA will
consider entering a de minimis
settlement.
Elements of the
Policy
There are three major issues
which must be analyzed to
determine whether a particular
landowner will be protected
from liability by this policy:
• the landowner's role in the
contamination of the aquifer;
• the landowner's relationship
to the person who contam-
inated the aquifer; and
• the existence of any ground-
water wells on the land-
owner's property that affect
the spread of contamination
within the aquifer.
-------
Landowner's Role in the
Contamination of the
Aquifer
A landowner seeking protec-
tion from liability under this
policy must not have caused
or contributed to the source of
contamination. However,
failure to take steps to miti-
gate or address groundwater
contamination, such as con-
ducting groundwater investi-
gations or installing ground-
water remediation systems,
will not, in the absence of
exceptional circumstances,
preclude a landowner from the
protection of this policy.
Landowner's
Relationship to the
Person who Caused the
Aquifer Contamination
First, this policy requires that
the original contamination
must not have been caused by
an agent or employee of the
landowner. Second, the
property owner must not have
a contractual relationship with
the polluter. A contractual
relationship includes a deed,
land contract, or instrument
transferring possession. Third,
Superfund requires that the
landowner inquire into the
previous ownership and use of
the land to minimize liability.
Thus, if the landowner buys a
property from the person who
caused the original contami-
nation after the contamination
occurred, the policy will not
apply if the landowner knew
of the disposal of hazardous
substances at the time the
property was acquired. For
example, where the property
at issue was originally part of
a larger parcel owned by a
person who caused the release
and the property is subdivided
and sold to the current owner,
who is aware of the pollu-
tion and the subdivision,
there may be a direct or
indirect "contractual relation-
ship" between the person that
caused the release and the
current landowner. In this
instance, the owner would not
be protected by the policy.
In contrast, land contracts or
instruments transferring title
are not considered contractual
relationships under CERCLA
if the land was acquired after
the disposal of the hazardous
substances and the current
landowner did not know, and
had no reason to know, that
-------
any hazardous substance had
migrated into the land.
The Presence of a
Ground water Wei I on
the Landowner's
Property and its
Effects on the Spread
of Contamination in
the Aquifer
Since a groundwater well may
affect the migration of con-
tamination in an aquifer,
EPA's policy requires a fact-
specific analysis of the cir-
cumstances, including, but not
limited to, the impact of the
well and/or the owner's use of
it on the spread or contain-
ment of the contamination in
the aquifer.
Common Questions
Regarding Application of
the Policy
"If a prospective buyer
knows of aquifer contamina-
tion on a piece of property
at the time of purchase, is he
or she automatically liable
for clean-up costs?"
No. In such a case the buyer's
liability depends on the
seller's involvement in the
aquifer contamination. If the
seller would have qualified for
protection under this policy,
the buyer will be protected.
For example, if the seller of
the property was a landowner
who bought the property
without knowledge, did not
contribute to the contamina-
tion of the aquifer and had no
contractual relationship with
the polluter, then the buyer
may take advantage of this
policy, despite knowledge of
the aquifer contamination.
In contrast, if the seller has a
contractual relationship with
the polluter and the buyer
knows of the contamination,
then this policy will not
protect the buyer.
"If an original parcel of
property contains one
section which has been
contaminated by the seller
and another uncontami-
nated section which is
threatened with contamina-
tion migrating through the
aquifer, can a buyer be
protected under the policy if
he or she buys the threatened
section of the property?"
-------
The purchase of the threat-
ened parcel separate from the
contaminated parcel estab-
lishes a contractual relation-
ship between the buyer and
the person responsible for the
threat. This policy will not
protect such a buyer unless
the buyer can establish that he
or she did not know of the
pollution at the time of the
purchase and had no reason to
know of the pollution. To
establish such lack of knowl-
edge the buyer must prove
that at the time he acquired
the property he inquired into
the previous ownership and
uses of the property.
waste at a particular site. To
be eligible for such a settle-
ment, the landowner must not
have handled the hazardous
waste and must not have
contributed to its release or
the threat of its release. Once
the EPA enters into a
de minimis settlement with a
landowner, third parties may
not sue that landowner for the
costs of clean-up operations.
Whether or not the Agency
issues a de minimis settlement,
EPA may seek the landowner's
full cooperation (including
access to the property) in
evaluating and implementing
cleanup at the site.
Protection from
Third Party Law Suits
Finally, EPA will consider de
minimis settlements with
landowners who meet the
requirements of this policy if
a landowner has been sued or
is threatened with third-party
suits. A de minimis settlement
is an agreement between the
EPA and a landowner who
may be liable for clean up of a
small portion of the hazardous
For further information contact:
This policy was issued on May 24,1995
and published in the Federal Register on
July 3,1995 (volume 60, page 34790).
You may order a copy of the policy from
the National Technical Information
Service (NTIS), U.S. Department of
Commerce, 5825 Port Royal Rd.,
Springfield, VA 22161.
Orders must reference NTIS accession
number PB96-109145.
-------
For telephone orders or further
information on placing an order:
callNTISat
(703)487-4650
for regular service, or
(800) 553-NTIS for rush service.
For orders via e-maMntemet, send to
the following address:
orders@ntis. fedworld. go v
For more information about the
Contaminated Aquifer Policy, call
Elisabeth Freed, (202) 564-5117, Office
of Site Remediation Enforcement.
-------
The Effect of Superfund on
Involuntary Acquisitions of
Contaminated Property by
Government Entities
United States Environmental Protection Agency
Office of Enforcement and Compliance Assurance
December 1995
Units of state, local, and federal government sometimes invol-
untarily acquire contaminated property as a result of perform-
ing their governmental duties. Government entities often
wonder whether these acquisitions will result in Superfund
liability. This fact sheet summarizes EPA's policy on Superfund
enforcement against government entities that involuntarily
acquire contaminated property. This fact sheet also describes
some types of government actions that EPA believes qualify for
a liability exemption or a defense to Superfund liability.
Introduction
EPA's Brownfields Economic
Redevelopment Initiative is
designed to help states,
communities, and other
stakeholders in economic
redevelopment to work to-
gether in a timely manner to
prevent, assess, safely clean
up, and sustainably reuse
brownfields. Brownfields are
abandoned, idled, or under-
used industrial and commer-
cial facilities where expansion
or redevelopment is compli-
cated by real or perceived
environmental contamination.
Many municipalities and other
government entities are eager
for brownfields to be redevel-
oped but often hesitate to take
any steps at these facilities
because they fear that they
will incur Superfund liability.
This fact sheet answers
common questions about the
effect of the Comprehensive
Environmental Response,
Compensation, and Liability
Act (CERCLA, commonly
known as Superfund, and set
forth at 42 United States Code
-------
beginning at Section 9601) on
involuntary acquisitions by
government entities. EPA
hopes that this fact sheet will
facilitate government entities'
plans for redevelopment of
brownfields and the "broker-
age" of those facilities to
prospective purchasers.
What is an involuntary
acquisition?
EPA considers an acquisition
to be "involuntary" if it meets
the following test:
• The government's interest in,
and ultimate ownership of,
the property exists only
because the actions of a
non-governmental party
give rise to the govern-
ment's legal right to control
or take title to the property.
For example, a government's
acquisition of property for
which a citizen failed to pay
taxes is an involuntary acqui-
sition because the citizen's tax
delinquency gives rise to the
government's legal right to
take title to the property.
Will a government entity
that involuntarily acquires
contaminated property be
liable under CERCLA?
To protect certain parties from
liability, CERCLA contains
both liability exemptions and
affirmative defenses to liabil-
ity. A party who is exempt
from CERCLA liability with
respect to a specified act
cannot be held liable under
CERCLA for committing that
act. A party who believes that
he or she has an affirmative
defense to CERCLA liability
must prove so by a preponder-
ance of the evidence.
After it involuntarily acquires
contaminated property, a unit
of state or local government
will generally be exempt from
CERCLA liability as an
owner or operator. In addition,
the unit of state or local
government will have a
somewhat redundant affirma-
tive defense to CERCLA
liability known as a "third-
party" defense, provided other
requirements for the defense,
which are described below,
are met. A federal government
entity that involuntarily
acquires contaminated prop-
-------
erty and meets the require-
ments described below will
have a third-party defense to
CERCLA liability.
The requirements for a third-
party defense to CERCLA
liability are the following:
• The contamination occurred
before the government entity
acquired the property;
• The government entity
exercised due care with
respect to the contamination
(e.g., did not cause,
contribute to, or exacerbate
the contamination); and
• The government entity took
precautions against certain
acts of the party that caused
the contamination and
against the consequences of
those acts.
A government entity will not
have a CERCLA liability
exemption or defense if it has
caused or contributed to the
release or threatened release
of contamination from the
property. As a result, acquir-
ing property involuntarily
does not unconditionally or
permanently insulate a gov-
ernment entity from CERCLA
liability. Government entities
should therefore ensure that
they do not cause or contrib-
ute to the actual or potential
release of hazardous sub-
stances at facilities that they
have acquired involuntarily.
For more information, see 42
U.S.C. 9601(20) (D),
9607(b)(3), and 9601(35)(A)
and (D).
It is also important to note
that the liability exemption
and defense described above
do not shield government
entities from any potential
liability that they may have as
"generators" or "transporters"
of hazardous substances under
CERCLA. For additional
information, see 42 U.S.C.
9607(a).
What are some examples of
involuntary acquisitions?
CERCLA provides a non-
exhaustive list of examples of
involuntary acquisitions by
government entities. These
examples include acquisi-
tions following abandon-
ment, bankruptcy, tax
delinquency, escheat (the
transfer of a deceased person's
property to the government
when there are no competent
-------
heirs to the property), and
other circumstances in
which the government
involuntarily obtains title by
virtue of its function as a
sovereign.
What is EPA's official
policy regarding CERCLA
enforcement against
government entities that
involuntarily acquire
contaminated property?
In 1992, EPA issued its Rule
on Lender Liability Under
CERCLA ("Rule"), 57 Fed-
eralRegister 18344 (April 29,
1992). The Rule included a
discussion of involuntary
acquisitions by government
entities. In 1994, the Rule was
invalidated by the court.
In September 1995, EPA and
the U.S. Department of
Justice (DOJ) issued their
"Policy on CERCLA Enforce-
ment Against Lenders and
Government Entities that
Acquire Property Involun-
tarily" ("Lender Policy"). In
the document, EPA and DOJ
reaffirm their intentions to
follow the provisions of the
Rule as enforcement policy.
The Lender Policy advises
EPA and DOJ personnel to
consult both the Rule and its
preamble while exercising
their enforcement discretion
with respect to government
entities that acquire property
involuntarily. Most of the
relevant portions of the Rule
and preamble have been
summarized in this fact sheet.
Under the Lender Policy, EPA
has expanded the examples
listed in CERCLA by describ-
ing the following categories of
involuntary acquisitions:
Acquisitions made by
government entities acting as a
conservator or receiver
pursuant to a clear and direct
statutory mandate or
regulatory authority (such as
acquisition of the security
interests or properties of failed
private lending or depository
institutions);
Acquisitions by government
entities through foreclosure
and its equivalents while
administering a governmental
loan, loan guarantee, or loan
insurance program; and
Acquisitions by government
entities pursuant to seizure or
forfeiture authority.
Similar to the examples listed
in CERCLA EPAs list of
-------
categories of involuntary
acquisitions is non-exhaustive.
To determine whether an
activity not listed in CERCLA
or under the Lender Policy is
an "involuntary acquisition,"
one should analyze whether
the actions of a non-govern-
mental party give rise to the
government's legal right to
control or take title to the
property.
If a government entity takes
some sort of voluntary
action before acquiring the
property, can the acquisition
still be considered "involun-
tary"?
Yes. Involuntary acquisitions,
including the examples listed
in CERCLA, generally re-
quire some sort of discretion-
ary, volitional action by the
government. A government
entity need not be completely
"passive" in order for the
acquisition to be considered
"involuntary" for purposes of
CERCLA. For further discus-
sion, see 57 Fed. Reg. 18372
and 18381.
that involuntarily acquires
contaminated property be
liable under CERCLA to
potentially responsible
parties and other non-
federal entities?
If a unit of state or local
government involuntarily
acquires property through any
of the means listed in
CERCLA, it will be exempt
from CERCLA liability as an
owner or operator. In addition,
any government entity will
have a third-party defense to
CERCLA liability if all
relevant requirements for that
defense are met (see above).
If a government entity ac-
quires property through any
other means, it appears likely-
based on the way that courts
have treated lender issues
during the last few years - that
a court would apply principles
and rationale that are consis-
tent with EPA and DOJ's
Lender Policy. Analysis of
these acquisitions may require
an examination of case law
and state or local laws.
Will a government entity If someone dies and leaves
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contaminated property to a
government entity, is this
considered an involuntary
acquisition?
No, this type of property
transfer is not considered an
involuntary acquisition under
CERCLA. However, CERCLA
provides a third-party defense
for parties that acquire prop-
erty by inheritance or bequest
(a gift given through a will).
Thus, a government entity that
acquires property in this
manner will have a third-party
defense to CERCLA liability if
all relevant requirements of
that defense are met and the
government entity has not
caused or contributed to the
release or threatened release of
contamination from the prop-
erty (see above). For more
information, see 42 U.S.C.
9607(b)(3) and 9601 (35)(A)
and (D).
Will a government entity that
uses its power of eminent
domain be liable under
CERCLA?
After a government entity
acquires property through the
exercise of eminent domain
(the government's power to
take private property for
public use) by purchase or
condemnation, it will have a
third-party defense to
CERCLA liability if all
requirements for that defense
are met (see above). For more
information, see 42 U.S.C.
9607(b)(3) and 9601(35)(A).
Will parties that purchase
contaminated property from
government entities also be
exempt from CERCLA
liability?
No. Nothing in CERCLA
allows non-governmental
parties to be exempt from
liability after they knowingly
purchase contaminated prop-
erty. However, EPA encour-
ages prospective purchasers of
contaminated property to
contact their state environ-
mental agencies to discuss
these properties on a site-by-
site basis. At sites where an
EPA action has been taken, is
ongoing, or is anticipated to
be undertaken, various tools,
including "prospective pur-
chaser agreements," may be
an option.
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For further information:
The Lender Policy was published in the
Federal Register in Volume 60, Number
237, at pages 63517 to 63519
(December 11,1995).
You may order copies of the Lender
Policy from the National Technical
Information Service (NTIS), U.S.
Department of Commerce, 5285 Port
Royal Rd., Springfield, VA 22161.
Orders must reference NTIS accession
number PB95-234498. For telephone
orders or further information on placing
an order, call NTIS at 703-487-4650 for
regular service or 800-553-NTIS for
rush service. For orders via e-mail/
Internet, send to the following address
orders @ ntis.fedworld.gov
If you have questions about this fact
sheet, contact Bob Kenney of EPA's
Office of Site Remediation Enforcement
at (202) 564-5127.
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This page is intentionally blank.
132
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Using Supplemental Environmental
Projects to Facilitate Brownfields
Re-development
United States Environmental Protection Agency
Office of Enforcement and Compliance Assurance
330-F-98-001
Office of Site Remediation Enforcement
Policy and Program Evaluation Division 2273G
September 1998
In April 1998, EPA issued the
final "Supplemental Environ-
mental Projects Policy." In
that policy EPA encourages
the use of Supplemental
Environmental Projects in the
settlement of environmental
enforcement actions. Using
SEPs to assess or cleanup
brownfield properties is an
effective way to enhance the
environmental quality and
economic vitality of areas in
which the enforcement actions
were necessary,
Introduction
In settlements of environmen-
tal enforcement cases, defen-
dant/respondents often pay
civil penalties. EPA encour-
ages parties to include
Supplemental Environmental
Projects (SEPs) in these
settlements and will take
SEPs into account in setting
appropriate penalties. While
penalties play an important
role in deterring environmen-
tal and public health viola-
tions, SEPs can play an
additional role in securing
significant environmental and
public health protection and
improvement. EPA's final
Supplemental Environmental
Projects Policy (SEP Policy)
describes seven categories of
SEPs, the legal guidelines for
designing such projects, and
the methodology for calculat-
ing penalty credits. In certain
cases, SEPs may facilitate the
reuse of "brownfield" prop-
erty. This fact sheet answers
common questions about how
SEPs can be used in the
brownfields context.
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What are Brownfields?
EPA defines brownfields as
abandoned, idled, or under-
used industrial and commer-
cial facilities where expansion
or redevelopment is compli-
cated by real or perceived
environmental contamination.
In many cases assessment of
the environmental condition
of a property is all that is
necessary to spur its reuse.
Through the Brownfields
Economic Development
Initiative, EPA has developed
a number of tools to prevent,
assess, safely cleanup and
promote the sustainable reuse
of brownfields. SEPs are one
of the tools that can be used at
brownfields properties.
What is a SEP?
A SEP is an environmentally
beneficial project that a
defendant/respondent agrees
to undertake in settlement of a
civil penalty action, but that
the defendant/respondent is
not otherwise legally required
to perform. In return, a per-
centage of the SEP's cost is
considered as a factor in
establishing the amount of a
final cash penalty. SEPs
enhance the environmental
quality of communities that
have been put at risk due to
the violation of an environ-
mental law.
Meeting Legal
Requirements
The SEP Policy has been
carefully structured to ensure
that each SEP negotiated by
EPA is within the Agency's
authority and consistent with
statutory and Constitutional
requirements. Although all of
the legal requirements in the
Policy must be met when
considering a SEP at a
brownfield, the following
requirements are particularly
important:
SEPs at Brownfields Cannot
Include Action that the
Defendant/Respondent is
Otherwise Legally Required
to Perform
Activities at a brownfield site
for which the defendant/
respondent is otherwise
legally required to perform
under federal, state, or local
law or regulation cannot
constitute a SEP. This
restriction includes actions
that the defendant/respondent
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is likely to be required to
perform (1) as injunctive
relief in any action brought by
EPA or another regulatory
agency, or (2) as part of an
order or existing settlement in
another legal action. This
restriction does not pertain to
actions that a regulatory
agency could compel the
defendant/respondent to
undertake if the Agency is
unlikely to exercise that
authority.
As a general rule, if a party
owns a brownfield or is
responsible for the primary
environmental degradation at
a site, assessment or cleanup
activities cannot constitute a
SEP.
SEPs at Brownfield Require
an Adequate Nexus between
the Violation and the Project
The SEP Policy requires that a
relationship, or nexus, exist
between the violation and the
proposed project. A SEP at a
brownfield will generally
satisfy the nexus requirement
if the action enhances the
overall public health or
environmental quality of the
area put at risk by the viola-
tion.
A SEP is not required to be at
the same facility where the
violation occurred provided
that it is within the same
ecosystem or within the
immediate geographical area.
In general, the nexus require-
ment will be satisfied if the
brownfield is within a 50 mile
radius of the site from which
the violation occurred. How-
ever, location alone is not
sufficient to satisfy the nexus
requirement - the environment
where the brownfield is
located must be affected or
potentially threatened by the
violation.
A relationship between the
statutory authority for the
penalty and the nature of the
SEP is not required in order
for the nexus test to be met.
Therefore, the violation need
not relate to hazardous waste
or contaminated properties in
order for EPA to consider a
SEP at a brownfield. (e.g., in
the case of a Clean Air Act
violation, EPA could approve
a SEP at a brownfield).
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SEPs at Brownfields Cannot
include Actions that the
Federal Government is
Likely to Undertake or
Compel Another to Undertake
If EPA or another federal
agency has a statutory obliga-
tion to assess, investigate, or
take other response actions at
a brownfield, or to issue an
order compelling another to
take such action, the Agency
may not negotiate a SEP
whereby the defendant/
respondent carries out those
activities.
As a general rule, SEPs are
inappropriate at the following
site types because of EPA's
statutory obligations:
sites on the National Priorities
List under the Comprehensive
Environmental Response,
Compensation, and Liability
Act (CERCLA), § 105, 40 CFR
Part 300, Appendix B;
sites where the federal
government is planning or
conducting a removal action
pursuant to CERCLA § 104(a)
and the National Oil and
Hazardous Substances
Pollution Contingency Plan, 40
CFR § 300.415; and
sites for which the defendant/
respondent or other party would
likely be ordered to perform an
assessment, response, or
remediation activity pursuant to
CERCLA § 106, the Resource
Conservation and Recovery Act
(RCRA), § 3013, § 7003, §
3008(h), the Clean Water Act
(CWA) § 311, and other federal
law.
SEPs may be Performed at
Brownfields Involuntarily
Acquired by Municipalities
As stated above, if EPA would
likely issue an order compel-
ling a Party to cleanup a
brownfield, such remedial
action cannot be the subject of
a SEP. Pursuant to the portion
of the CERCLA Lender
Liability Rule addressing
involuntary acquisitions, 40
C.RR. § 300.115, the Agency
will not issue a remediation
order to a municipality that
has involuntarily acquired a
brownfield even if the Agency
would otherwise issue such an
order to a private owner.
Therefore, if
(1) a brownfield is acquired
involuntarily by a local
government,
(2) there are no other potential
liable parties, and
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(3) the known level of
contamination would not
compel the Agency to take
action itself,
a SEP at this property would
be appropriate.
SEPs May Be Limited at
Brownfields that Received
Federal Funds
A SEP cannot provide a
municipality, state, or other
entity that has received a
federal Brownfields Assess-
ment Demonstration Pilot or
other federal brownfields
grant with additional funds to
perform a specific task identi-
fied within the assistance
agreement. If a defendant/
respondent proposes a SEP
whereby the party provides
money to a local government
to assess or cleanup a
brownfield, the municipality
must not have received a
federal grant to carry out the
same work. Similarly, a
defendant/respondent cannot
on its own undertake assess-
ment or other response work
at a brownfield when a grant
recipient has received federal
funds to undertake the same
project. A SEP could, how-
ever, include additional
cleanup activities at a site so
long as those activities are not
the same as those performed
with federal brownfield
funding. For example, at a site
which a federal Brownfields
Targeted Site Assessment is
performed, a SEP that cleans
up the same site would be an
appropriate project (provided
that a CERCLA104(a) re-
moval action is not war-
ranted).
Selecting an Appropriate
SEP Activity for a
Brownfield Site
The SEP Policy identifies two
categories of SEPs that are
appropriate for brownfields.
Environmental Quality
Assessment Projects
In general terms, environ-
mental quality assessments
involve investigating or
monitoring the environmental
media at a property. To be
eligible as SEPs, such activi-
ties must be conducted in
accordance with recognized
protocols, if applicable, for
the type of work to be under-
taken.
-------
Assessment projects may not,
as indicated, include work that
the federal government would
undertake itself or issue an
order to accomplish. There-
fore if a SEP involves an
assessment of site conditions
at a brownfield, the site must
not be one where EPA is
planning or conducting
assessment activities. Both
CERCLIS and EPA's Pre-
CERCLIS Screening Guid-
ance are useful to determine
whether a federal assessment
is warranted or planned.
Environmental Restoration
Projects
For sites at which contamina-
tion does exist, but where an
EPA response action or order
to a party is not warranted, a
SEP may involve removing or
remediating contaminated
media or material. Restoration
SEPs can involve restoring
natural environments, such as
ecosystems, or man-made
environments, such as facili-
ties and buildings. Creating
conservation land, such as
transforming a former landfill
into wilderness land may be
an appropriate SEP. The
removal of substances that the
federal government does not
have clear authority to ad-
dress, such as contained
asbestos or lead paint, may
also constitute an appropriate
restoration project.
Community Input
No one can judge the value to
a community of an assessment
or cleanup project at a
brownfield better than the
community in which the site
is located. Local communities
are the most affected by
environmental violations, and
have the most to gain by SEPs
that address their concerns.
Therefore, in appropriate
cases local communities
should be afforded an oppor-
tunity to comment on and
contribute to the design of
proposed SEPs at brownfield
sites. Accordingly, Regions
are encouraged to promote
public involvement in accor-
dance with the Community
Input procedures set forth
within the SEP Policy.
Evaluation Checklist for
SEPs at Brownfields
On the next page, two ex-
-------
amples are provided to
demonstrate typical propos-
als Regions may receive
from parties that wish
conduct SEPs at
brownfields. One of the
proposals would be ap-
proved and the other would
not. A checklist of questions
along with answers is
provided to demonstrate the
analysis Regions should
apply when considering
such requests.
For further information contact:
If you have any questions regarding
this fact sheet, please contact the
Office of Site Remediation
Enforcement at (202) 564-5100. To
access the SEP Policy on the internet,
open page: http://epa.gov/compliance/
resources/policies/cleanup/superfund/
proj-brownf-mem.pdf
For further information about EPA's
Brownfield Economic Development
Initiative go to page http://
www.epa.gov/brownfields
Hypothetical A:
The Company A owns and operates a
manufacturing facility in downtown
Cityville. The company uses solvents
as part of its manufacturing process.
During its operation, Company A
discharges wastewater into the
Running River. EPA alleges that on at
least one occasion, the level of
solvents in the wastewater exceeded
the level specified in EPA's effluent
the level specified in EPA's effluent
standards under the Clean Water Act.
EPA filed a civil complaint seeking
penalties for the CWA violation.
Company A proposed doing a SEP to
partly reduce the penalty. The project
involves assessing the environmental
conditions of a nearby abandoned lot.
The lot is owned not by the Company,
but by the Cityville government,
which obtained title from the previous
owner via tax foreclosure. To date,
Cityville has been attempting to
interest developers in the property but
to no avail due to concerns regarding
possible contamination from a prior
industrial operation at the lot. To
determine the extent of contamina-
tion, Cityville recently received a
federal Brownfields Assessment
Demonstration Pilot.
Hypothetical B:
Company B owns and operates a
factory in downtown Springfield. EPA
conducted an inspection of the
factory's air emissions and determined
that the Company has violated certain
Clean Air Act (CAA) standards
resulting in the release of air pollut-
ants into the nearby neighborhood.
EPA filed a civil complaint seeking
penalties for the CAA violations.
Company B proposed doing a SEP
that involves the cleanup of debris at
an abandoned parcel located several
blocks away, downwind from
Company B's factory. The lot is filled
with used tires and abandoned trash,
and is infested with vermin. The lot is
the site of a former bakery which long
ago went bankrupt. There is no
history of any past industrial opera-
tion on-site.
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CHECKLIST
• Does the project contribute to the revitalization of an abandoned, idled, or under-used
industrial or commercial property where redevelopment has been complicated by real or
perceived environmental contamination?
A. Yes. Conducting soil sampling will help revitalize the abandoned lot because it will resolve the
questionable environmental condition of the property that has discouraged developers.
B. Yes. Cleaning up the used tires and trash and addressing the vermin problem at this former
bakery site will make the property more attractive to developers.
• Does the project include actions that the defendant/respondent would otherwise likely be
required to perform under federal, state, or local law or regulation? Is there a court or
administrative order or existing settlement agreement that would obligate the defendant/
respondent to undertake the proposed project?
A. No. Company A does not own the property, and there is no reason to suspect that Company A
would be responsible for any contamination that may be discovered at the site.
B. No. Company B does not own the property, and there is no reason to suspect that the
company would be required under federal, state, or local law to remove debris from the site.
• Is there an adequate nexus between the violation and the brownfield? Is the project
within the same ecosystem or within a 50 mile radius of the facility where the violation
occurred?
A. Yes. The site is located close to the Company's facility, and the proposed SEP addresses the
same ecosystem and human population threatened by the Company's wastewater discharge.
B. Yes. The abandoned parcel is located downwind of Company B's factory. The proposed SEP
addresses the same ecosystem and human population threatened by the illegal air emissions.
• Does the SEP address environmental conditions that the federal government is statutorily
obligated to either address itself or order another to address? Is the site on CERCLA's
National Priorities List? Is the Agency likely to conduct a removal under CERCLA, or might
the Agency order any party to perform remediation activity pursuant to CERCLA, RCRA, or
the CWA?
A. No. There is no indication that EPA has documented any contamination at the site or would
investigate the abandoned lot. Therefore, there is no reason to believe that the Agency would
consider conducting an investigation or removal action or compel any party to undertake such
activities.
B. No. There is no indication that the federal government has a statutory obligation to remove
debris from the abandoned parcel. The site is not on the National Priorities List, and there is no
reason to believe that the types of debris at issue would warrant the Agency to conduct a
removal action or compel any party to undertake any response activity.
• Does the SEP provide a municipality, state, or other entity that has received a federal
brownfields grant additional funds to perform a specific task identified within the
assistance agreement? Does the defendant/respondent seek to undertake work at a site
where a federal grant recipient has received an award to undertake the same work?
A. Yes. Cityville has received funding through a federal Brownfields Assessment Demonstration
Pilot.
B. No. There is no indication that Springfield or any entity has received a federal grant to clean up
the property.
• Does the SEP involve an Environmental Quality Assessment Project or an Environmental
Restoration Project?
A. Yes. The soil sampling project can be categorized as an Environmental Quality Assessment
Project.
B. Yes. Removal of the debris can be categorized as an Environmental Restoration Project.
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Brownfields and RCRA Fact Sheet
United States Environmental Protection Agency
Office of Site Remediation Enforcement
EPA330/F/99/001
November 1999
Background
In February 1995, EPA
announced its Brownfields
Action Agenda, launching the
first federal effort of its kind
designed to empower states,
tribes, communities, and other
parties to safely cleanup, and
return brownfields to
productive use. Building on
the original agenda, in 1997
EPA initiated the Brownfields
National Partnership Agenda,
involving nearly 20 other
federal agencies in
brownfields cleanup and
reuse. Since the 1995
announcement, EPA has
funded brownfield pilot
projects, reduced barriers to
cleanup and redevelopment by
clarifying environmental
liability issues, developed
partnerships with interested
stakeholders, and stressed the
importance of environmental
workforce training.
To date, EPA has focused
primarily on brownfield issues
associated with the
Comprehensive
Environmental Response,
Compensation, and Liability
Act (CERCLA or Superfund).
Representatives from cities
and industries, as well as
other stakeholders however,
have begun emphasizing the
importance of looking beyond
CERCLA and addressing
environmental issues at
brownfield sites in a more
comprehensive manner,
including issues related to the
Resource Conservation and
Recovery Act (RCRA). This
fact sheet provides a brief
overview of RCRA and its
potential requirements for
parties dealing with
Brownfields are aban- |
doned, idled, or under- |
used industrial and com- |
mercial facilities where I
expansion or redevelop- |
ment is complicated by |
real or perceived environ- |
mental contamination. I
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brownfields and their
associated assessment and
cleanup activities.
RCRA
The Resource Conservation
and Recovery Act, an amend-
ment to the Solid Waste
Disposal Act, was enacted in
1976 to address a problem of
enormous magnitude—the
huge volumes of municipal
and industrial solid waste
generated nationwide. Gener-
ally, the RCRA program
focuses on prevention rather
than cleanup.
RCRA allows the state to
assume responsibility for
implementing a hazardous
waste regulatory program,
with oversight from the
federal government. In order
for a state to implement such
a program under RCRA, it
must receive authorization
from EPA. To obtain authori-
zation the state program must
be at least equivalent to and
consistent with the federal
rules, and must provide for
adequate enforcement. In
states that have received
authorization, known as
"authorized states," the state's
authorized hazardous waste
program applies in lieu of the
Table 1
RCRA's Three Interrelated Programs
Subtitle D
Solid Waste Program
Focuses on state and
local governments as
the primary planning,
regulation, and
implementing entities
for the management of
nonhazardous solid
waste, such as
household garbage and
nonhazardous
industrial solid waste.
Subtitle C
Hazardous Waste
Program
Establishes a system for
controlling hazardous
waste from the time it is
generated until its
ultimate disposal - in
effect, from cradle to
grave.
Subtitle I
Underground Storage
Tank Program
Regulates underground
tanks storing hazardous
substances and
petroleum products.
Major objectives are to
prevent and clean up
releases from these
tanks.
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federal program, although
EPA retains its enforcement
authorities.
RCRA establishes three
distinct yet interrelated
programs. The solid waste
program, under RCRA
Subtitle D, encourages states
to develop comprehensive
plans to manage nonhazard-
ous industrial solid waste and
municipal solid waste, sets
criteria for municipal solid
waste landfills and other solid
waste disposal facilities, and
prohibits the open dumping
of solid waste. The under-
ground storage tank (UST)
program, under RCRA
Subtitle I regulates under-
ground tanks storing hazard-
ous substances (but not
hazardous waste) and petro-
leum products. Subtitle C of
RCRA provides for the
comprehensive regulation of
hazardous waste. When fully
implemented, this program
provides "cradle-to-grave"
regulation of hazardous waste
by establishing a system for
controlling and tracking the
waste from its generation
through its ultimate disposal.
The hazardous waste require-
ments under RCRA Subtitle C
are the focus of this fact sheet
because brownfield activities
may, in certain instances,
involve the management of
hazardous waste.
RCRA's Cradle-to-Grave
Hazardous Waste Manage-
ment System
Under RCRA Subtitle C, EPA
has developed a comprehen-
sive program to ensure that
hazardous waste is managed
safely from the moment it is
generated; while it is trans-
ported, treated, or stored;
including final disposal (see
Figure 1). Therefore, Subtitle
C requirements apply to three
Figure 1
Hazardous
Waste
Generation
Hazardous
Waste
Transportation
Treatment,
Storage,
and
Disposal
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classes of hazardous waste
handlers: generators; trans-
porters; and treatment, stor-
age or disposal facilities.
Generators
Subtitle C regulations broadly
define the term generator to
include any person who:
First creates or produces a
hazardous waste (e.g., from an
industrial process)
OR
First brings a hazardous waste
into the RCRA Subtitle C
system (e.g., imports a
hazardous waste into the US).
Hazardous waste (HW)
generators may include
various types of facilities and
businesses ranging from large
manufacturing operations,
universities, and hospitals to
small businesses and labora-
tories. Because these differ-
ent types of facilities generate
different volumes of wastes
resulting in varying degrees
of environmental risk, RCRA
regulates generators based on
the amount of waste they
generate in a calendar month.
There are three categories of
hazardous waste generators
(see Table 2).
Transporters
A hazardous waste transporter
is any person engaged in the
off-site transportation of
hazardous waste within the
United States, if such trans-
portation requires a manifest
(generated by a small quantity
generator or large quantity
generator). Off-site transpor-
tation includes shipments
from a hazardous waste
generator's facility to another
facility for treatment, storage,
or disposal. Regulated off-
site transportation includes
shipments of hazardous waste
by air, rail, highway, or water.
Treatment, Storage, and
Disposal Facilities (TSDFs)
The requirements for treat-
ment, storage, and disposal
facilities (TSDFs) are more
extensive than the standards
for generators and transport-
ers. They include general
facility operating standards, as
well as standards for the
various types of units in
which hazardous waste is
managed. With some excep-
-------
tions, a TSDF is a facility
engaged in one or more of the
following activities:
Treatment - Any method,
technique, or process designed
to physically, chemically, or
biologically change the nature
of a hazardous waste
Storage - Holding hazardous
waste for a temporary period
(greater than 90 days), after
which that hazardous waste is
treated, disposed of, or stored
elsewhere
Disposal - The discharge,
deposit, injection, dumping,
spilling, leaking, or placing of
any solid or hazardous waste on
or in the land or water.
Identifying Hazardous
Waste
Determining whether a
material must be managed in
accordance with subtitle C
regulatory requirements
involves three steps. The first
step in the hazardous waste
identification process is
determining if a waste is a
solid waste. With some
exceptions, the regulations
define solid waste as any
material that is discarded,
regardless of its physical state
(i.e., solid, liquid, semi-solid,
or contained gas). For more
information on the exceptions
see 40 CFR Part 261.4. Once
a waste is classified as a solid
waste, the second step is to
determine whether the waste
is hazardous as defined by the
Subtitle C hazardous waste
regulation.
According to EPA definitions,
a material can be hazardous if
it falls into one of the follow-
ing categories:
It exhibits a "characteristic" of
hazardous waste (see 40 CFR
Part 261, SubpartD).
The Agency has specifically
designated (or "listed") the
material as hazardous (see 40
CFR Part 261, Subpart D).
Characteristic wastes are
hazardous because their
inherent properties exhibit
one or more of the following:
ignitability (some paints and
cleaning agents are examples),
corrosivity (such as waste
sulfuric acid from car batter-
ies), reactivity (e.g., discard-
ed explosives), or toxicity
(e.g., lead or arsenic). Regu-
lations in Part 261 define
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these properties.
being handled.
Listed wastes are wastes from
particular industrial processes,
wastes from certain industry
sectors, and certain unused
chemical formulations when
discarded or intended for
discard.
The third step for determin-
ing whether RCRA Subtitle
C requirements apply is
what one does with the mate-
rial: that is, how is the charac-
ter-istic or listed material
RCRA as it Relates to
Brownfields
Brownfields may come under
RCRA jurisdiction in two
ways. First, RCRA cleanup
requirements apply at
brownfields that are RCRA
treatment, storage or disposal
facilities (TSDF). All treat-
ment storage or disposal
facilities are required to obtain
a RCRA permit. Unless the
site becomes subject to
Table 2
Generator Categories
Large Quantity
Generators
Large quantity
generators (LQGs) -
defined as those
facilities that generate:
• 1,000 kg of hazardous
waste per calendar
month or greater
OR
• Greater than 1 kg of
acutely hazardous
waste per calendar
month
+A LQG may
accumulate hazardous
waste on site for 90
days or less without a
RCRA permit
Small Quantity
Generators
Small quantity
generators (SQGs) -
defined as those
facilities that:
• Generate between
100 kg and 1,000 kg
of hazardous waste
per month
OR
• Accumulate less than
6,000 kg of
hazardous waste at
any time
+A SQG may
accumulate hazardous
waste on site for 180
days or less
Conditionally
Exempt Small
Quantity Generators
Conditionally exempt
small quantity generators
(CESQGs) - defined as
those facilities that
generate:
• Less than 100 kg of
hazardous waste per
month
OR
• Less than 1 kg of
acutely hazardous
waste per month
+May not accumulate
more than 1,000 kg at
one time
-------
RCRA solely as a result of
conducting cleanup, these
RCRA permits are required to
address the cleanup of re-
leases from any unit where
solid or hazardous wastes
have been placed at any time.
Pursuant to 3008(h), EPA,
may through an administra-
tive or judicial order, also
compel cleanup at facilities
that have, or should have had
interim status, as well as some
facilities that had interim
status. Many states have
similar authority.
Second, cleanups at
brownfields that were not
previously RCRA facilities
can trigger RCRA require-
ments. In the course of a
cleanup, hazardous waste may
be generated, treated, stored,
or disposed of on site. If this
occurs, the property may
become subject to RCRA.
Applicable RCRA regulations
may include the requirement
to obtain a permit if certain
treatment, storage, or disposal
occurs on site. However, if
the waste is promptly re-
moved from the site (within
90 days), the remediator
could be regulated as a haz-
ardous waste generator, and
would not be required to
obtain a permit.
Cleanup Responsibilities
Under RCRA
The State or Federal agency
implementing the RCRA
program where a site is
located has the authority to
compel Corrective Action
(CA) at a treatment, storage,
or disposal facility (TSDF).
Generator-only sites are not
subject to RCRA corrective
action requirements. How-
ever, in certain circumstances,
under RCRA §7003, where
a condition at a site may
present an imminent and
substantial endangerment to
human health and/or the
environment, EPA has the
authority to compel present
and past owners and operators
as well as generators to clean
up a site.
HWIR-Media Rule and
Brownfields
The recently promulgated
Hazardous Remediation
Waste Management Require-
ments (HWIR-Media) Final
-------
Rule makes a number of
changes that should address
some concerns regarding the
application of RCRA to
brownfield sites. HWIR-
Media encourages cleanup
activities, particularly at sites
that may not otherwise be
subject to CA, such as
brownfields, making require-
ments under RCRA for
facilities handling only haz-
ardous remediation wastes
more flexible (i.e., those
wastes managed as a result of
cleaning-up a site). Among
other things, the rule provides
incentives for brownfield
cleanup by no longer mandat-
ing facility-wide corrective
action at cleanup only sites;
reducing permitting require-
ments to streamline the
administrative process; and by
creating a new kind of unit
called a "staging pile" that
allows more flexibility in
temporarily storing
remediation waste during
cleanup activities.
RCRA Brownfields Preven-
tion
In June of 1998, EPA an-
nounced its RCRA
Brownfields Prevention
Initiative which included
forming a national workgroup
to identify ways, in appropri-
ate situations, to facilitate the
cleanup and reuse of previ-
ously used property which
may have RCRA implica-
tions. EPA also plans to
select a few regionally spon-
sored pilots in 2000 to help
our goal of protective, expedi-
tious cleanups that allow
future reuse of the property.
While the RCRA Brownfields
Prevention Initiative will not
address large scale regulatory
or legislative reform, it will
build on the statutory and
regulatory flexibility that
currently exists. The goals
for EPAs RCRA Brownfields
Prevention Initiative are
1. To raise awareness by
announcing and publicizing
our intentions in undertaking
this initiative to lenders,
developers, community
representatives and other
stakeholders in brownfields
cleanup and reuse.
2. To work with our partners on
brownfields reuse to gather
information, identify and
address RCRA barriers, and
develop solutions.
-------
3. To develop tools such as fact
sheets and pilot good ideas
generated from dialogue with
interested stakeholders.
Questions and Answers
Q: WhatisaRCRA
Brownfield?
A: Brownfields are abandoned
or underutilized industrial and
commercial properties whose
potential for redevelopment is
complicated by real or per-
ceived environmental con-
tamination irrespective of
whether the property is sub-
ject to Superfund, RCRA or
another statute. RCRA
brownfields are simply
brownfields that may be or
have been subject to RCRA
requirements or may have
RCRA statutory or regulatory
implications.
Q: Does EPA have an estab-
lished program for RCRA
Brownfields?
A: In June of 1998, EPA
announced its RCRA
Brownfields Prevention
Initiative which included
forming a national workgroup
to identify ways, in appropri-
ate situations, to facilitate the
cleanup and reuse of previ-
ously used property which
may have been subject to
RCRA requirements.
Q: How do I find out if apiece
of property is regulated under
RCRA?
A: You can find out whether a
property is currently regulated
under RCRA by contacting
the state where the property is
located or by calling the
RCRA hotline at 800/424-
9346.
Q: What is the difference
between Superfund/CERCLA
and RCRA?
A: In operation, RCRA
primarily regulates active
facilities and is focused on
how wastes should be man-
aged to avoid potential threats
to human health and the
environment although it does
have a cleanup (i.e., corrective
action) component.
CERCLA, on the other hand,
-------
comes into play primarily
when a site has been aban-
doned or mismanagement has
occurred (i.e., when there has
been a release or a substantial
threat of a release in the
environment of a hazardous
substance or of a pollutant or
contaminant that presents an
imminent and substantial
threat to human health or the
environment).
Q: How is a site or facility
defined under RCRA ?
A: For purposes of corrective
action, RCRA defines a
facility as all contiguous
property under the control of
the owner or operator seeking
a permit under Subtitle C or
subject to an order under §
3008(h) of RCRA.
Q: What activities may subject
a per son to RCRA corrective
action (CA)?
A: Generally, treatment,
storage or disposal of waste
listed or identified as hazard-
ous under Subtitle C subjects
a facility to the corrective
action requirements (unless it
is a cleanup only site.)
Q: If I clean up my site under
CERCLA, do I still have
worry about RCRA
requirements?
A: A cleanup under CERCLA
should be adequate to meet
the RCRA cleanup, or correc-
tive action requirements.
However, a CERCLA cleanup
does not exempt you from
RCRA regulations. Site-
specific factors need to be
evaluated by the implement-
ing agency on a case-by-case
basis; consult your State, EPA
Regional office or the RCRA
hotline.
Q: As a RCRA facility, are
there any brownfield
incentives that I can take
advantage of?
A: At the federal level, EPA is
exploring administrative
options, within the existing
statutory framework, to
provide incentives. EPA plans
to select a few regionally
sponsored pilots in 2000 to
help our goal of protective,
-------
expeditious cleanups that
allow future reuse of the
property. Check with your
respective state and/or local
governments for incentives
offered independently of the
federal government.
Q: Will sampling trigger
RCRA?
A: No, sampling should not
generally trigger RCRA
regulations.
Q: Who is responsible for
cleanup at a RCRA site?
A: Unlike Superfund, under
RCRA generally the current
owner/operator of a facility is
responsible for cleanup.
However, under RCRA §7003
the implementing Agency has
the authority to compel past
owners and operators as well
as generators to clean up a site
in certain circumstances.
Q: How do I get more infor-
mation?
A: Visit EPAs web site at:
www.epa.gov/oswer or Call
our RCRA hotline: 800/424-
9346 or 703/412-9810
For more information on a
specific site in your area you
should contact your state
because RCRA is primarily
implemented by the states.
For further information contact:
Tessa Hendrickson - (202) 564-6052
Office of Site Remediation and
Enforcement
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152
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The Imminent and Substantial
Endangerment Provision of Section
7003ofRCRA
United States Environmental Protection Agency
Office of Site Remediation Enforcement
Quick Reference Fact Sheet
Section 7003 of the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. Section 6973, provides EPA with a broad
and effective enforcement tool that can be used to abate immi-
nent and substantial endangerments to health or the environ-
ment. Designed for use by EPA staff, this fact sheet helps
clarity the meaning of "imminent and substantial endanger-
ment" and describes the usefulness of Section 7003.
Introduction
RCRA Section 7003 allows
EPA to address situations
where the handling, storage,
treatment, transportation, or
disposal of any solid or
hazardous waste may present
an imminent and substantial
endangerment to health or the
judicial action or issue an
administrative order to any
person who has conducted or
is contributing to such han-
dling, storage, treatment,
transportation, or disposal to
require the person to refrain
from those activities or to take
any necessary action.
Section 7003(a) is very
similar to the imminent and
substantial endangerment
provision contained in
CERCLA Section 106(a) of
the Compensation, Compre-
hensive Environmental Re-
sponse, Compensation, and
Liability Act (CERCLA), 42
U.S.C. Section 9606(a). In
addition, it allows EPA to
require some actions that can
also be required under the
corrective action provision set
forth in Section 3008(h) of
RCRA, 42 U.S.C. Section
6928(h). However, RCRA
Section 7003 provides EPA
with a very valuable enforce-
ment tool by allowing EPA to
address several types of
situations that are beyond the
scope of CERCLA Section
106(a) and RCRA Section
-------
3008(h).
The Meaning of "Imminent
and Substantial Endangerment"
Despite the dramatic sound of
the term "imminent and
substantial endangerment," it
is not very difficult to meet
the endangerment standard set
forth in RCRA Section 7003.
The "imminent and substan-
tial endangerment" language
and standard contained in
CERCLA Section 106(a) and
RCRA are very similar to the
language and in Section
106(a) and RCRA Section
7002, 42 U.S.C. Section
6972, the RCRA citizen suit
provided provisions which
allows any person to com-
mence a civil action to seek
abatement of an imminent and
substantial endangerment to
heal or the environment. Thus
far, the courts have not distin-
guished between the endan-
germent standards of these
three provisions. The follow-
ing principles have emerged
from courts interpreting
RCRA and CERCLAs immi-
nent and substantial endanger-
ment provisions:
An "endangerment" is an
actual, threatened, or potential
harm to health or the
environment. [1] As underscored
by Congress use of the words
"may present" in the
endangerment standard of §
7003, neither certainty nor
proof of actual harm is
required. [2] Moreover, neither
a release nor threatened release
is required. [3] Endangerment
to the environment does not
require a risk to living
organisms. Thus, a risk to
groundwater in a populated area
is sufficient even if the
conditions may no present an
endangerment to humans or
other life forms. [4]
An endangerment can be
"imminent" if the present
conditions indicate that there
may be a future risk to health or
the environment, [5] even
though the harm may not be
realized for years. [6] It is not
necessary for the harm to be
immediate. [7]
An endangerment can be
"substantial" if there is
reasonable cause for concern
that health or the environment
may be at risk. [8] It is not
necessary that the risk be
quantified. [9]
Factors to consider when
determining if conditions may
present an imminent and
substantial endangerment
under RCRA Section 7003
-------
include (1) the levels of
contaminants in various
media, (2) the existence of a
connection between the solid
or hazardous waste and air,
soil, groundwater, or surface
water, (3) the pathway of
exposure from the solid or
hazardous waste to the popu-
lation at risk, (4) the sensitiv-
ity of the population, (5)
bioaccumulation in living
organisms, and (6) visual
signs of stress on vegeta-
tion. [ 10] It is important to
note, however, that in any
given case, one or two factors
may be so predominant as to
be determinative of the is-
sue.[ll]
The following are some
examples of situations where
courts have determined that
imminent and substantial
endangerments have existed
under RCRA:
At a shooting range where lead
from lead shot had accumulated
in the tissues of nearby
waterfowl and shellfish. [12]
At a facility where oily waste
containing hazardous
constituents had leaked from
tanks into surrounding
soils. [13] EPA had determined
that there was a potential for
off-site migration of the
contaminants through a
drainage ditch leading toward a
nearby river. [14] EPA also
documented the death of
several migratory birds and
introduced evidence from the
U.S. Fish and Wildlife Service
indicating that there was a
continuing threat to migratory
birds.[15]
At a municipal landfill that had
leaked at least 10% of its
leachate containing low levels
of lead into an adjacent
wetland. [16] Lead levels in test
wells surrounding the landfill
were generally below the
maximum contaminant levels
(MCLs) for drinking water, [17]
and no actual harm was shown
to the wetland. [18] However,
an expert testified that cattails
in the wetland would not show
actual harm until they had been
exposed to contamination for
an extended period of time. [19]
At a shopping center where dry
cleaning solvents discharged
from dry cleaning facilities had
contaminated groundwater in a
populated area. [20]
Contaminant levels in the
migrating plume exceeded
MCLs. [21] Although some
area wells had been closed at
least in part because of the
contaminated plume, the court
found that the conditions may
have presented an imminent
and substantial endangerment
to the environment, but not
-------
necessarily to human
health. [22]
The Usefulness of Section
7003
Section 7003 provides broad
enforcement authority that can
be used against a variety of
parties to address endanger-
ments resulting from various
types of materials and to
require a wide variety of
abatement actions. Section
7003 is especially valuable
because it allows EPA to
address certain situations
which cannot be addressed
under either CERCLA Section
106(a) or RCRA Section
3008(h).
Two examples of the general
usefulness of Section 7003 are
the following:
Under § 7003, "any person"
includes any past or present
generator, past or present
transporter, or past or present
owner or operator of a
treatment, storage, or disposal
facility. EPA can therefore
initiate actions under Section
7003 against parties including
those falling into any of the
four categories of potentially
responsible parties (PRPs)
under CERCLA.
Section 7003 allows EPA to
require the respondent or
defendant to cease any
activities contributing to the
endangerment and/or take any
necessary action. Possible
abatement actions include
investigations and studies,
interim measures,
comprehensive corrective
action, controls on future
operations, and discontinuance
of operations.
Under CERCLA Section
106(a), EPA may initiate a
judicial action or issue an
administrative order to a PRP
when there may be an immi-
nent and substantial endanger-
ment because of an actual or
threatened release of a "haz-
ardous substance". Advan-
tages of RCRA Section 7003
over CERCLASection 106(a)
include the following:
Section 7003 can be used to
issue administrative orders to
any federal department or
agency in an expeditious
manner. Section 6001 (a) of
RCRA, 42 U.S.C. Section 6961
(a), contains an express waiver
of sovereign immunity that
allows administrative orders
and civil and administrative
penalties and fines to be issued
and assessed against any
federal department or agency.
-------
Section 600 l(b) of RCRA, 42
U.S.C. Section 696l(b),
expressly grants the
Administrator the authority to
issue an administrative order to
another federal department or
agency pursuant to RCRA's
enforcement authorities,
including Section 7003.
Although RCRA Section
6001provides that an
administrative order issued to
federal department or agency
does not become final until the
department or agency has had
the opportunity to confer with
the Administrator, concurrence
from the Department of Justice
(DOJ) is not required for orders
issued under RCRA Section
7003. In contrast, Executive
Order 12580 on Superfund
Implementation (January
23,1987) requires EPA to obtain
DOJ concurrence before issuing
an order to federal department
or agency under CERCLA
Section 106(a). RCRA Section
7003 therefore allows for more
expeditious issuance of orders
to federal departments and
agencies.
Section 7003 can be used to
address endangerments caused
by waste which is "solid waste"
as defined in Section 1004(27)
of RCRA, 42 U.S.C. Section
6903(27), but which is not
"hazardous waste" as defined in
Section 1004(5) of RCRA, 42
U.S.C.Section 6903(5), or in
the regulations promulgated
pursuant to Section 3001 of
RCRA 42 U.S.C.Section 6921.
The definition of "hazardous
substance" in Section 101(14)
of CERCLA, 42 U.S.C.Section
9601(14), includes "hazardous
waste" having characteristics
identified under or listed
pursuant to Section 3001 of
RCRA. CERCLA's definition
of "hazardous substance" does
not include materials that
qualify as "solid waste" under
RCRA Section 1004(27),
although it does encompass
some materials, such as
radionuclides, which are not
"solid waste" and therefore
cannot be addressed under
RCRA Section 7003.
Nevertheless, RCRA Section
7003 can be used to address a
significant category of
materials, "solid waste" under
Section 1004(27), that cannot
be addressed under CERCLA
Section 106(a).
Section 7003 can be used to
address endangerments caused
by "hazardous waste" that
meets the broad definition of
that term under Section 1004(5)
of RCRA, but which does not
meet the more narrow
definitions of "hazardous
waste" promulgated in 40
C.F.R. Part 261 pursuant to
RCRA Section 3001. As noted
above, CERCLA's definition of
"hazardous substance" includes
"hazardous waste" having
characteristics identified under
-------
or listed pursuant to RCRA
Section 3001. The CERCLA
definition of "hazardous
substance" does not include all
materials that qualify as
"hazardous waste" as defined in
RCRA Section 1004(5).
Section 7003 can therefore be
used to address some hazardous
wastes that are beyond the
scope of CERCLA
Section 106(a).
Section 7003 can be used to
address endangerments caused
by petroleum. Petroleum is
excluded from the definition of
"hazardous substance" in
CERCLA Section 101(14).
Petroleum is not excluded from
the definitions of "solid waste"
under RCRA Section 1004(27)
or "hazardous waste" under
RCRA Section 1004(5). RCRA
Section 7003 can therefore be
used to address a significant
category of materials B
petroleum and petroleum
products B that cannot be
addressed under CERCLA
Section 106(a).
RCRA Section 3008(h) allows
EPA to require corrective
action to address the release
of hazardous waste or hazard-
ous constituents at any treat-
ment, storage, or disposal
facility authorized to operate
under interim status pursuant
to Section 3005(e) of RCRA,
42 U.S.C. Section 6925(e).
EPA interprets the term
"authorized to operate" to
include facilities currently
operating under interim status,
as well as those that lost
interim status or should have
obtained interim status but
failed to do so. RCRA§
3008(h) does not require a
finding of imminent and
substantial endangerment.
Nevertheless, advantages of
RCRA Section 7003 over
RCRA Section 3008(h)
include the following:
Section 7003 can be used to
address endangerments caused
by "solid waste" that meets the
definition of that term under
Section 1004(27) of RCRA, but
which does not meet the
definition of "hazardous waste"
under RCRA Section 1004(5 ).
At least one court has held that
RCRA Section 3008(h) applies
to the release of hazardous
constituents listed by EPA in
Appendix VIII of 40 C.F.R.
Part 261 and not merely to the
release of "hazardous waste" as
stated in RCRA Section
3008(h).[23] Nevertheless,
RCRA § 3008(h) does not
appear to apply to the release of
merely "solid waste" that is not
a hazardous waste or a
hazardous constituent. RCRA
Section 7003 can therefore be
used to address a significant
-------
category of materials, "solid
waste" under Section 1004(27),
that cannot be addressed under
RCRA Section 3008(h).
Section 7003 can be used to
address spills of solid or
hazardous waste by generators
at facilities that are not
authorized (and not required to
be authorized) for interim status
under RCRA Section 3008(h).
RCRA Section 3008(h) applies
only to releases from treatment,
storage, or disposal facilities
that have, had, or should have
had interim status. Section 7003
can therefore be used to address
releases and other
endangerments at a large
category of facilities that are
beyond the scope of Section
3008(h): facilities at which
solid or hazardous waste is
generated but which neither
have, had, nor were required to
have, interim status.
[1] See, e.g., Dague v. City of
Burlington, 935 F.2d 1349,1356
(2dCir. 1991).
[2] Id.
[3] United States v. Aceto
Agricultural Chemicals Corp.,
872 F.2d 1373, 1382 (8th Cir.
1989).
[4] See, e.g., Lincoln Properties.
Ltd. v. Higgins, 23. Envtl. L.
Rep. (Envtl. L. Inst.) 20665,
20671-672 (E.D. Cal. 1993)
[6] See, e.g., United States v.
Conservation Chemical Co.,
619 F. Supp. at 194 (W.D. Mo.
1985).
[7] Dague, 935 F.2d at 1356.
[8] See, e.g., Conservation
Chemical Co., 619 F. Supp. at
194.
[9] Id.
[10] See, e.g., Dague v. City of
Burlington, 732 F. Supp. 458
(D.Vt. 1989).
[11] Conservation chemical Co.,
619 F. Supp. at 194.
[12] Connecticut Coastal
Fishermen's Association v.
Remington Arms Co., Inc., 989
F.2dl305, 1317 (2d Cir. 1993).
[13] United States v. Valentine, 856
F. Supp. 621, 625 (D. Wyo.
1994).
[14] Id. at 624.
[15] Id. at 624-625.
[16]Dague, 935 F.2d at 1356.
[5] See, e.g., Dague, 935 F2d at
1356.
-------
[17]Dague, 732 F. Supp. at 463.
[18] Id. at 469.
[19] Id. at 468.
[20] Lincoln Properties, 23 Envtl. L.
Rep. at 20671-672.
[21] Id. at 20671.
[22] Id. at 20672.
[23] United States v. Clow Water
Systems, 701 F. Supp. 1345,
1356 (S.D. Ohio 1988).
For further information contact:
The Office of Site Remediation
Enforcement, in conjunction with the
Office of Regulatory Enforcement, is
currently developing a guidance
document to supersede EPA's 1984
guidance on the use and issuance of
administrative orders under RCRA
Section 7003. The 1984 guidance will
remain in effect until the new guidance
is issued.
If you have questions about this fact
sheet or the project to develop new §
7003 guidance, please contact EPA's
Office of Site Remediation Enforcement
at (202) 564-5100.
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RCRA CLEANUP REFORMS
Faster, Focused, More Flexible Cleanups
United States Environmental Protection Agency
Solid Waste and Emergency Response (5305W)
EPA530-F-99-018
Office of Solid Waste
July 1999
The U.S. Environmental Protection Agency (EPA) is implement-
ing a set of administrative reforms, known as the RCRA
Cleanup Reforms, to the Resource Conservation and Recovery
Act (RCRA) Corrective Action program. The reforms are
designed to achieve faster, more efficient cleanups at RCRA
sites that treat, store, or dispose of hazardous waste and have
potential environmental contamination. Although these reforms
will emphasize flexibility and trying new approaches to clean
up these facilities, EPA and the states will continue to ensure
protection of human health and the environment.
Why Is EPA Doing the
RCRA Cleanup
Reforms?
When the RCRA law and
regulations governing proper
hazardous waste management
went into effect around
1980, thousands of facili-
ties became newly subject
to these federal regula-
tions. This RCRA regula-
tory structure has helped
ensure that hazardous
waste generated from
ongoing industrial opera-
tions is properly managed
and does not contribute to a
future generation of toxic
waste sites. However, many
of these facilities had
existing soil and groundwa-
ter contamination resulting
from historical waste
National Cleanup Goals
(Number of Facilities with Cleanup
Measures Verified per Year)
Year
1999
172
2001
2002
2003
2004
2005
Current Human
Exposures
Controlled
172
172
172
172
257
257
255
Groundwater
Contamination
Controlled
84
172
172
172
172
172
172
Total 1629* 1200*
By 2005 (95%) (70%)
•"Includes facilities verified prior to 1999
-------
management practices. The
RCRA Corrective Action
program addresses cleanup of
existing contamination at
these operating industrial
facilities.
Congress, the general public,
EPA, and state agencies all
believe the pace and progress
of RCRA cleanups must be
increased. In reviewing the
program, EPA and other
stakeholders identified several
factors that were impeding
timely and cost-effective
RCRA cleanups. In some
instances, RCRA cleanups
have suffered from an empha-
sis on process steps and a lack
of clarity in cleanup objec-
tives. An additional complica-
tion is that the application of
certain RCRA requirements,
such as the land disposal
restrictions (LDR), minimum
technological requirements,
and permitting, can create
impediments to cleanup.
What Are the RCRA
Cleanup Reforms?
The RCRA Cleanup Reforms
are EPA's comprehensive
effort to address the key
impediments to cleanups,
maximize program flexibility,
and spur progress toward a set
of ambitious national cleanup
goals. The national cleanup
goals focus on 1,712 RCRA
facilities identified by EPA
and the states warranting
attention over the next several
years because of the potential
for unacceptable exposure to
pollutants and/or for ground-
water contamination. The
goals, set by EPA under the
Government Performance and
Results Act (GPRA), are that
by 2005, the states and EPA
will verify and document that
95 percent of these 1,712
RCRA facilities will have
"current human exposures
under control," and 70 percent
of these facilities will have
"migration of contaminated
groundwater under control."
To ensure that these ambitious
goals are achieved, the RCRA
Cleanup Reforms outline
aggressive national cleanup
goals for each of the next
several years. Implementation
of the proposed reforms will
help us achieve the national
RCRA cleanup goals. Specifi-
cally, the RCRA Cleanup
Reforms will:
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Provide new results-oriented
cleanup guidance with clear
objectives.
Foster maximum use of
program flexibility and
practical approaches through
training, outreach, and new
uses of enforcement tools.
Enhance community
involvement including greater
public access to information on
cleanup progress.
These reforms are described
in more detail at the end of
this fact sheet. The reform
efforts are intended to build
on actions taken by EPA and
the states in recent years to
accelerate cleanups, such as:
The May 1, 1996, Advance
Notice of Proposed Rulemaking
(ANPR, 61 FR 19432) which
contains the Agency's latest
guidance for the corrective
action program and identifies a
number of flexible cleanup
approaches.
Recent promulgation of the the
Hazardous Remediation Waste
Management Requirements
("HWIR-Media," 63 FR 65874,
November 30, 1998) which,
among other things, create
streamlined RCRA permits for
cleanup wastes, release
"cleanup only" facilities from
requirement to conduct facility-
wide corrective action, and
allow for temporary "staging
piles" that have flexible design
and operating requirements.
Recent promulgation of the
Post-Closure Regulation (63 FR
56710, October 22, 1998)
which provides flexibility to
EPA and authorized states by
removing the requirement that
interim status facilities obtain a
permit for the post-closure care
of a waste management unit
when other enforcement
documents are used, and
harmonizing the sometimes
duplicative closure and
corrective action requirements.
The Land Disposal Restrictions
Standards for Contaminated
Soils (63 FR 28617, May 26,
1998) which better tailor
RCRA's LDRs to contaminated
soils managed during cleanups.
How Will the Success of
the Reforms Be
Measured?
While the ultimate goal of
RCRA Corrective Action is to
achieve completed cleanups,
we will measure the near-term
success of the program and
reforms against the GPRA
goals and annual cleanup
targets for verifying that
current human exposures are
under control and migration
of contaminated groundwater
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is under control (see table on
preceding page). Measuring
and recording our progress
toward these goals will be a
top priority for EPA and the
states over the next several
years.
How Will EPA Involve
Stakeholders In the
Reforms?
We will provide periodic
updates on the RCRA
Cleanup Reforms and solicit
input from stakeholders
through several means includ-
ing focus meetings, Federal
Register notices, the new
RCRA Corrective Action
newsletter, Internet postings,
and press releases. EPA seeks
continuous feedback from all
stakeholders on the need for
additional reforms beyond
those already underway.
While the Agency values and
appreciates the feedback and
interest of all stakeholders,
limited resources will not
allow us to respond individu-
ally to those who provide
input on the RCRA Cleanup
Reforms. All input will be
seriously considered by EPA,
however. Based on stake-
holder input and our ongoing
assessment of the program,
we will continue to refine the
RCRA Cleanup Reforms, add
reforms as needed, and com-
municate program changes
including those resulting from
stakeholder input.
For further information contact:
the RCRA Hotline at 800-424-9346. You
may also e-mail your questions via our
Web site at
http://www.epa.gov/epaoswer/hotline/
index.htm.
If you would like to provide written
feedback on the Reforms, please mail
them to the RCRA Information Center
(5305W), USEPA, 401 M St., SW,
Washington, DC 20460 or, e-mail to
rcra-docket@epa.gov. Please include the
following number on all
correspondence, written or e-mailed, to
the RCRA Information Center:
F-1999-CURA-FFFFF.
The RCRA Corrective
Action program is run
jointly by EPA and the
states, with 33 states and
territories authorized to
implement the program.
Corrective action is con-
ducted under RCRA per-
mits, orders and other
approaches.
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RCRA Cleanup Reforms
EPA is Implementing the following reforms to help streamline
RCRA cleanups and meet the national cleanup goals
I. Provide new results-
oriented cleanup guidance
with clear objectives
EPA will issue a Federal
Register notice concerning
the operating guidance for
the corrective action
program. EPA also will issue
several guidance documents
to emphasize use of
flexibility in the corrective
action process, consistent
measures for determining
when a site has met
corrective action goals, and
to provide a more consistent
basis for groundwater use
decisions.
a. Notice Concerning 1990
Subparr S Proposal
In an upcoming Federal
Register notice, EPA plans to
announce its intention not to
take final action on most of
the provisions of the July 27,
1990, proposed Subpart S
rule. Provisions of Subpart S
which have been finalized
(e.g., Corrective Action
Management Units) will
remain in effect. This notice
is intended to eliminate
uncertainty for states and
owner/operators created by
the potential promulgation
of detailed federal regul-
ations, thereby clearing the
way for implementation of
more flexible corrective
action approaches. In the
notice, EPA plans to clarify
that the Agency does not
intend to finalize a process-
oriented corrective action
approach, and to confirm that
the 1996 Advanced Notice of
Proposed Rulemaking
remains the primary co-
rrective action program
guidance.
b. Corrective Action Guidance
1. Environmental Indicators
Guidance and Implement-
ation
The two corrective action
Environmental Indicators-
Current Human Exposures
under Control sn&Migration
of Contaminated Ground-
water under Control-are
measures of program
progress and are being used
to meet the goals set under
the Government Perform-
ance and Results Act. This
guidance, issued in February
1999, describes how to
determine if these measures
have been met.
These Environmental Indic-
ators are designed to aid site
decision makers by clearly
showing where risk reduct-
ion is necessary, thereby
helping regulators and
-------
facility owner/operators
reach agreement earlier on
stabilization measures or
cleanup remedies that must
be implemented. Focusing
on the Environmental
Indicators should also help
reduce delays in the review
of cleanup work plans and
allow owner/operators and
regulators to concentrate on
those problems that potent-
ially pose significant risks.
2.Results-Based Approaches
for RCRA Corrective Action
This guidance will stress that
results-based approaches
which emphasize outcomes
and eliminate unnecessary
process steps, should be a
significant part of state/
regional corrective action
programs in order to meet the
GPRA goals and to move
facilities toward the longer-
term goal of final facility
cleanup. Results-based
approaches include setting
cleanup goals, providing
procedural flexibility in how
goals are met, inviting
innovative technical
approaches, focusing data
collection, and letting owner/
operators undertake cleanup
action with reduced Agency
oversight, where appropriate.
Under such approaches,
owner/operators focus on
environmental results and the
most technologically effic-
ient means of achieving them
while still being held fully
accountable.
3. Corrective Action Comple-
tion Guidance
This guidance will discuss
how to document completion
of corrective action at
facilities. It will address:
termination of permits and
interim status where
corrective action is complete;
how to determine that
corrective action is complete
at part of a facility; and the
importance of public
involvement in corrective
action. This guidance will
provide for a more pre-
dictable completion process
and provide facility owner/
operators with reasonable
assurance that regulatory
activities can be completed at
their facility.
4. The Role of Groundwater
Use in RCRA Corrective
Action
This guidance is intended to
provide more certainty about
cleanup objectives and
expectations with respect to
groundwater remediation. It
will include recommend-
ations on how to account for
current and reasonably
expected uses of ground-
water when imple-menting
interim and final RCRA
corrective action remedies.
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II. Foster Maximum Use of
Program Flexibility and
Practical Approaches
throughTraining, Out-
reach, And New Uses of
Enforcement Tools
Through outreach and
training, EPA will encourage
maximum appropriate use of
the existing flexibility in the
corrective action program
and prompt implementation
of recent rules offering
regulatory flexibility.
a. Prompt Implementation of
the HWIR-Media and Post-
Closure Rules
EPA will strongly encourage
states to expeditiously in-
corporate the Hazardous
Remediation Waste Manage-
ment Requirements (HWIR-
Media) and Post-Closure
regulations into their
programs. As more states
adopt and implement the
flexibility in the HWIR
Media rule, Post Closure
rule, and the alternative soil
treatment standards pro-
mulgated under LDR Phase
IV, impediments to cleanup
will be reduced. This is
because these rules limit the
applicability in certain
cleanup situations of some
RCRA requirements such as
land disposal restrictions,
minimum technological
requirements, and permitt-
ing, or provide alternative
requirements more tailored
to cleanup situations.
b. Maximize Practical
Approaches and Use All
Appropriate Authorities to
Expedite Cleanup
The national EPA program
office will reach out to the
EPA regions, states, and
external stakeholders to
emphasize the importance of
environmental results in the
corrective action program.
EPA will place a priority on
authorizing additional states
to implement corrective
action or enhancing work
sharing arrangements with
states that are not authorized
for the program. With the
RCRA Cleanup Reforms we
hope to develop a new
atmosphere of partnership
and cooperation among
regulatory authorities,
industry, and stakeholders
We will encourage regulators
to use a broad spectrum of
approaches to expedite
corrective action and achieve
GPRA goals. These
approaches include new uses
of enforcement tools to
create incentives for cleanup
at facilities with cooperative
owners as well as to compel
cleanups at facilities where
collaborative approaches
have not yielded results.
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c. Provide Comprehensive
Training on Successful
Cleanup Approaches
EPA has launched a
comprehensive training
effort on Results-Based
Corrective Action, which
features a three-day
workshop offered to EPA
Regions and states in 1999
and 2000. An Internet
version of this training is also
being developed for release.
The training will emphasize
to corrective action
regulators the flexibility in
existing policies and
regulations. EPA and State
regulators will learn from
their peers about innovative,
successful approaches that
are speeding cleanups now at
corrective action sites. The
training emphasizes using a
Conceptual Site Model and
Environmental Indicators to
help focus corrective action
activity at sites. This
comprehensive training
effort will help EPA and
State regulators make
maximum use of the
flexibility inherent in the
corrective action program
and to adopt more
streamlined approaches for
accelerating cleanups.
III. Enhance Community
Involvement Including,
Greater Public Access to
Information on Cleanup
Progress
a. Emphasize Public Involve-
ment in RCRA Cleanups
Some of the clear benefits of
meaningful public involve-
ment include: letting the
public know from the onset
that their opinions are valued
and can influence decision
making; learning from the
public about past environ-
mental problems associated
with the facility; gaining an
understanding of current as
well as future land use plans;
and avoiding delays which
can arise late in the remedy
selection process when the
public has not been
adequately engaged.
EPA will continue to
emphasize the importance of
meaningful public involve-
ment throughout RCRA
cleanups. EPA's commitment
to meaningful public
involvement was described
in the 1996 Advance Notice
of Proposed Rulemaking and
is part of the central theme
of effective communication
that is interwoven throughout
the corrective action training
effort. In addition, public
involvement is the focus of
the RCRA Public Particip-
ation Training which is now
under development and will
be offered to regions and
states. EPA will also convene
workshops with stakeholders
later this year. Through these
workshops we hope to better
-------
understand the public's
concerns as well as gather
suggestions for further
improvements to the correct-
ive action program.
b. Provide Detailed Inform-
ation on Cleanup Progress
EPA will post information on
cleanup progress for
individual facilities on the
Internet. With this inform-
ation, we hope to generate
greater public interest and
awareness in corrective
action at individual facilities,
thereby enhancing the ability
of the community to become
more involved in decisions
about the cleanup. This
information will allow stake-
holders to monitor progress
at facilities in their area as
well as overall progress in the
corrective action program.
Information is available at:
www.epa.gov/epaoswer/
osw/cleanup.htm.
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170
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RCRA CLEANUP REFORMS
Reforms II: Fostering Creative Solutions
United States Environmental Protection Agency
Solid Waste and Emergency Response (5305W)
EPA530-F-01-001
Office of Solid Waste
January 2001
www.epa.gov/osw
The U.S. Environmental Protection Agency (EPA) is implement-
ing a second set of administrative reforms to accelerate the
cleanup of hazardous waste facilities regulated under the
Resource Conservation and Recovery Act (RCRA). EPA's 1999
Reforms promoted faster, focused, more flexible cleanups. The
2001 Reforms reinforce and build upon the 1999 Reforms and
will pilot innovative approaches, accelerate changes in culture,
connect communities to cleanup, and capitalize on redevelop-
ment potential, while maintaining protection of human health
and the environment.
Why Is EPA Reforming the
RCRA Corrective Action
Program?
The goals for the RCRA
Corrective Action program
remain very challenging. To
more effectively meet these
goals and speed up the pace of
cleanups, EPA introduced
RCRA Cleanup Reforms in
1999 and is implementing
additional Reforms in 2001.
The 1999 and 2001 Reforms
build upon actions taken by
EPA and the states in recent
years to accelerate cleanups.
EPA believes that the 1999
Reforms remain central to
successful implementation of
the program. The 1999 Re-
forms were designed to:
Focus the program more
effectively on achievement of
environmental results, rather
than fulfillment of unnecessary
steps in a bureaucratic process;
• Foster maximum use of
program flexibility and
practical approaches to achieve
program goals;
Enhance public access to
cleanup information and
improve opportunity for public
involvement in the cleanup
process.
-------
The 1999 Reforms set the
near-term focus of the pro-
gram on attainment of the two
Environmental Indicators and
established an environment
for program implementors to
be innovative and results-
oriented. The 1999 Reforms
have successfully led the
program toward faster, fo-
cused, more flexible cleanups.
An example of progress since
1997 is the increase in the
number of RCRA cleanup
facilities meeting both Envi-
ronmental Indicatorse, (from
47 to 504).
In 2000, EPA held a series of
meetings with program
implementors and stakehold-
ers, including representatives
from tribes, federal and state
agencies, regulated industry,
and environmental and com-
munity groups, to discuss
program impediments, suc-
cessful approaches and ideas
for 2001 Cleanup Reforms.
Central ideas that emerged
include the importance of: (1)
reinforcing and building upon
the 1999 Reforms; (2) em-
powering program
implementors to try new
approaches at the site level;
and (3) using frequent, infor-
mal communication through-
out the cleanup process.
What Are the Goals
of the RCRA
Corrective Action
Program?
EPA has established two
near-term goals, termed
"Environmental Indica-
tors," for the RCRA Cor-
rective Action program.
These goals, developed
under the Government
Performance and Results
Act (GPRA), are that by
2005, the states and EPA
will verify and document
that 95 percent of the
1,714 RCRA cleanup fa-
cilities under GPRA focus
will have "current human
exposures under control,"
and 70 percent of these fa-
cilities will have "migra-
tion of contaminated
groundwater under con-
trol." The long-term goal
of the program is to
achieve final cleanup at all
RCRA corrective action
facilities.
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What Are the RCRA
Cleanup Reforms of
2001?
The RCRA Cleanup Reforms
of 2001 highlight those
activities that EPA believes
would best accelerate program
progress and foster creative
solutions. The 2001 Reforms
reflect the ideas EPA heard
from program implementors
and stakeholders and intro-
duce new initiatives to rein-
force and build upon the 1999
Reforms. Specifically, the
2001 Reforms will:
Pilot innovative approaches;
Accelerate changes in culture;
Connect communities to
cleanups;
Capitalize on redevelopment
potential.
The 2001 Reforms include
just some of the innovative
approaches that have been
identified by program
implementors and stakehold-
ers. EPA intends to continue
work in other areas critical to
meeting program goals. In
particular, we seek to: con-
tinue a dialogue with inter-
ested parties on groundwater
cleanup and other issues
relating to final cleanup;
provide guidance tailored to
cleanup at facilities with
limited resources to pay for
cleanup; and, continue to
work with federally-owned
facilities to help them meet
their Environmental Indicator
goals. Similarly, we encour-
age program implementors
and stakeholders to use
approaches that improve the
program yet are not specifi-
cally included in the RCRA
Cleanup Reforms.
I. Pilot innovative
approaches.
The RCRA Cleanup Reforms
Pilot Program will support
state and EPA Regional
Offices in their efforts to use
innovative, results-orientated
and protective approaches to
speed achievement of Envi-
ronmental Indicator goals and
final cleanup. Stakeholders
are encouraged to contact
state and EPA Regional
Offices with their pilot ideas.
EPA has set a target of 25
pilot projects to be launched
in 2001. EPA expects at least
one pilot project in each EPA
Region, administered by the
state or EPA. EPA will show-
case pilot projects to share
-------
successes and lessons learned
and to promote use of similar
approaches at other facilities.
EPA recommends that stake-
holders consider pilot projects
in one or more areas. Ex-
amples include pilots that:
Achieve program goals most
effectively at companies with
multiple facilities;
Improve stakeholder
involvement and
communication to resolve
issues where cleanup progress
is slow;
Use site characterization
technologies or strategies that
efficiently assess
Environmental Indicators;
Enhance the use of protective
and accountable state non-
RCRA Cleanup programs to
achieve program goals;
Establish EPA Regional or state
"corrective action expediters"
to focus on cleanups that are
stalled or delayed;
Expedite achievement of
program goals at federally-
owned facilities;
Use Superfund or emergency
authorities at RCRA sites for
bankrupt or unwilling facilities.
What is the RCRA
Corrective Action
Program?
In 1980, when the RCRA law
and regulations went into effect
thousands of facilities became
subject to hazardous waste
management regulations. These
regulations helped ensure that
hazardous waste generated
from ongoing industrial opera-
tions is properly managed and
does not contribute to a future
generation of toxic waste sites.
However, many of these facili-
ties had soil and groundwater
contamination resulting from
their waste management prac-
tices prior to 1980. The RCRA
Corrective Action program ad-
dresses cleanup of past and
present contamination at these
operating industrial facilities.
Who Runs the RCRA Correc-
tive Action Program?
The RCRA Corrective Action
program is run by both EPA and
the states, with 38 states and ter-
ritories authorized to implement
the program. Corrective action
is conducted under RCRA per-
mits, orders and other ap-
proaches.
II. Accelerate changes in
culture.
EPA will help program
implementors and stakehold-
ers accelerate changes in the
culture in which they imple-
-------
ment the program by: focus-
ing on results over process;
encouraging frequent, infor-
mal communication among
stakeholders; encouraging
partnerships in training;
promoting methods of infor-
mation exchange; and, using
new approaches to meet
Environmental Indicator and
long-term cleanup goals. EPA
will:
• Promote nationwide dialogue
among program implementors
and stakeholders on RCRA
cleanups. EPA Regional Offices
will work with states in an
effort to hold at least one
meeting in 2001 in each EPA
Region, open to all stakeholders
who wish to interact, provide
input, or learn more about the
RCRA Corrective Action
program. Discussion topics
could cover local, regional or
national topics relevant to
corrective action.
• Conduct targeted training in
partnership with program
implementors and stakeholders.
EPA will work with interested
parties to deliver targeted
training, depending upon the
needs of those requesting the
training and available
resources. Training topics could
cover, for example: innovative
technical and administrative
approaches to cleanup; success
stories and lessons learned from
Focus on Results
The RCRA Cleanup Re-
forms foster creative, prac-
tical, results-based ap-
proaches to corrective ac-
tion. In the field, this
means:
• Providing tailored oversight.
Eliminate administrative or
technical steps where not
needed to assure effective
performance.
• Using holistic approaches.
Evaluate facilities for overall
risk and apply appropriate
facility-wide corrective
action measures.
• Exercising procedural flex-
ibility. Emphasize results
over mechanistic process
steps and eliminate unprod-
uctive activities.
• Setting performance stand-
ards, Establish clear pro-
tective standards the owner/
operator must fulfill to
complete corrective action.
• Targeting data collection.
Examine actual conditions at
each facility to design data
requirements as needed to
support corrective action
decisions.
implementation of the 1999
Cleanup Reforms; Corrective
Action program basics; and use
-------
of performance-based
approaches to corrective action.
• Use web-based communication
to share successes and lessons
learned and promote innovative
approaches. EPA will support
the establishment of a web-
based interactive tool to
promote sharing of successes
and lessons learned and to
provide for frequent exchange
of ideas among all stakeholders
on any corrective action topic,
including those that are
technical, policy-oriented or
site-specific.
• Overcome barriers to achieving
Environmental Indicators. EPA
will clarify the relationship
between Environmental
Indicators and final cleanups
and how Environmental
Indicators can be met within the
context of existing orders and
permits. EPA will answer
"Frequently Asked Questions"
about Environmental
Indicators, and issue technical
guidance on ways to assess the
impacts of contaminated
groundwater on surface water
and indoor air quality. In
addition, EPA will demonstrate
new uses of enforcement tools
to achieve Environmental
Indicators.
III. Connect communities
to cleanups.
EPA will provide the public
with more effective access to
cleanup information. EPA
seeks to increase public
interest in and awareness of
cleanup activities, and to
further enhance the public's
ability to become more in-
volved in decisions about
cleanups in communities. EPA
will:
• Clarify principles and
expectations for public
involvement in corrective action
cleanups. EPA will set out
general principles and
expectations for providing the
public with the opportunity to
become involved at corrective
action sites. EPA also will share
examples of successful public
involvement approaches that
have been used at RCRA
cleanup sites and lessons
learned.
• Increase support of Technical
Outreach Services for
Communities (TOSC). The
TOSC program provides
communities with technical and
educational assistance from
universities on issues associated
with cleanup of hazardous sites.
EPA will provide resources to
the TOSC program for
community involvement at
RCRA cleanup sites and
advertise the availability of this
program.
• Place Environmental Indicator
evaluation forms and cleanup
summaries on EPA web sites.
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EPA will place Environmental
Indicator evaluation forms and
summaries of cleanup activities
of 1,714 RCRA facilities on the
web sites of EPA Regional
Offices. The evaluation forms
and summaries will provide
readily available information on
the status of cleanup at these
sites.
• Publicize and promote the use
of readily accessible cleanup
information sources. EPA will
produce and distribute a
pamphlet for the general public
that explains how to access
RCRA Corrective Action
program information and site-
specific cleanup information.
IV. Capitalize on
redevelopment potential.
EPA encourages program
implementors and stakehold-
ers to capitalize on the rede-
velopment potential of RCRA
cleanup sites. Many of these
sites are located in areas that
are attractive for redevelop-
ment and are poised for
community revitalization.
These factors can motivate
interested parties to pursue an
expedited cleanup, sometimes
with additional resources.
EPA will:
Initiate Additional R CRA
Brownfields Pilots. EPA will
launch 4-6 additional RCRA
Brownfields pilot projects in
2001. These pilots will be
designed to showcase the
flexibility of RCRA and the use
of redevelopment potential to
expedite or enhance cleanups.
Pilot applicants could be
program implementors or
stakeholders. Pilot participants
also benefit from RCRA
brownfields expertise. Limited
funding may become available
for EPA to conduct public
meetings and related activities.
Initiate the Targeted Site Effort
(TSE) Program to spur cleanup
at RCRA sites with significant
redevelopment/reuse potential.
EPA will ask each Regional
Office to identify two sites for
the TSE in 2001. The TSE
program will apply to sites that
have significant redevelopment/
reuse potential, and require a
limited amount of extra EPA
support to help spur cleanup.
The TSE program will provide
participants with focused
attention and access to RCRA
brownfields expertise. Limited
funding may be available for
EPA to conduct public meetings
and related activities.
Provide training and outreach
to program implementors on
using redevelopment potential
to meet program goals. EPA
will provide training and
outreach to program
implementors and stakeholders
to promote the environmental
and community benefits that
-------
can be gained by integrating
brownfields redevelopment
opportiunities and RCRA
facility cleanups.
• Promote cleanup and
redevelopment with
R CRA "Comfort/Status"
Letters. " Comfort/status"
letters provide information
regarding EPA's intent to
exercise its RCRA corrective
action response and
enforcement authorities at a
cleanup site. EPA will issue
examples of letters that have
been used to spur cleanup and
redevelopment at RCRA
facilities.
How Will EPA Measure
the Results of the
Reforms?
Measuring and recording the
results of the RCRA Cleanup
Reforms is a priority for EPA
and the states to ensure
continued improvement of the
Corrective Action program.
EPA will measure progress in
putting the reforms into
practice. EPA recognizes
program implementors are
using new approaches that
may or may not be high-
lighted in the Cleanup Re-
forms, and will measure
progress under these ap-
proaches as well. While the
ultimate goal of the Corrective
Action program is to achieve
final cleanups, EPA will
continue to measure the near-
term success of the program
against its Environmental
Indicator goals for controlling
human exposure and migra-
tion of contaminated ground-
water.
How Will EPA Involve
Stakeholders in
Implementing the
Reforms?
EPA will provide periodic
updates on the RCRA
Cleanup Reforms and solicit
input from stakeholders
through several means, in-
cluding focus meetings,
Federal Register notices, the
RCRA Corrective Action
Newsletter, Internet postings,
and press releases.
EPA seeks continuous feed-
back from all stakeholders on
the need for additional re-
forms beyond those already
underway. EPA values and
appreciates the feedback and
interest of all stakeholders.
However, limited resources
may not allow us to respond
individually. Based on stake-
holder input and our ongoing
assessment of the program,
-------
we will continue to refine and
add to the RCRA Cleanup
Reforms, as needed, and will
communicate program
changes.
If you would like to provide
written comments on the
RCRA Cleanup Reforms,
please mail your comments
to:
RCRA Information Center
(5305W),U.S. Environmental
Protection Agenry, Ariel Rios
Building, 1200 Pennsylvania
Avenue, NW, Washington,
DC, 20460-0002, or send an
email to the RCRA docket at
rcra-docket@,epa.gov. Please
include the following number
on all correspondence, written
or e-mailed, to the RCRA
Information Center: F-2001-
CRII-FFFFF.
For further information on corrective
action cleanups, please visit state and
EPA Regional web sites, which can be
linked via the EPA corrective action web
site at http://www.epa.gov/
correctiveaction. The EPA corrective
action web site has the latest and more
detailed information on the RCRA
Cleanup Reforms.
If you have questions regarding the
RCRA Cleanup Reforms, please call the
RCRA Hotline at 800-424-9346 or TDD
800-553-7672, or visit their web site at
http://www.epa.gov/epaoswer/hotline/
index.htm.
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Environmental Fact Sheet
TREATMENT STANDARDS SET FOR TOXICITY
CHARACTERISTIC (TC) METAL WASTES, MINERAL
PROCESSING WASTES, AND CONTAMINATED SOIL
United States Environmental Protection Agency
Solid Waste and Emergency Response (5305W)
EPA530-F-98-010
Office of Solid Waste
April 1998
www.epa.gov/osw
The Environmental Protection Agency (EPA) is publishing
regulatory controls that encourage the safe recycling and
disposal of hazardous metal waste and newly identified waste
from mineral processing.
Background
The widespread practice of disposing of hazardous waste in
units located directly on the land has been regulated by EPA's
Land Disposal Restrictions (LDR) program for many years. A
major part of the LDR program is to adequately protect public
health and safety by establishing treatment standards for
hazardous wastes before they can be disposed of in land dis-
posal units. These treatment standards either specify that the
waste be treated by a specified technology, or that they be
treated by any technology as long as the concentration of
hazardous constituents is below a certain level. Universal
Treatment Standards specify the concentration levels for haz-
ardous constituents. In addition to setting new treatment stan-
dards, another continuing task of the EPA is to better define
which industrial materials are wastes, thus subject to regula-
tion, and which should be excluded from regulation.
Action
LDR treatment standards are established for metal-bearing
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APPENDIX C
183
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184
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September 29, 2000
Background
To quell the growing concern that some parties may incur
Superfund liability although they did not cause the hazardous
waste contamination, EPA developed two mechanisms - PPAs
and comfort/status letters.
Over the years, EPA had heard that these tools were very
effective in allaying those concerns although the Agencies had
not collected data.
In order to substantiate the anecdotal claims that PPAs and
comfort/status letters enabled parties to reuse formerly con-
taminated property, OSRE undertook a survey analysis of
regional staff and private parties. OSRE used the surveys to
collect general information on the use of these tools, obtain
specific data on property cleanup and reuse, and determine the
effectiveness of these tools in meeting the needs of private
parties and regional staff to cleanup and reuse contaminated
property.
OSRE evaluated the survey responses according to the follow-
ing criteria:
How instrumental PPAs and comfort/status letters have been in
accelerating site cleanup and revitalization of blighted properties;
How effective PPAs and comfort/status letters have been in meeting the
needs of the requesters;The timeliness of the PPA and comfort/status
letter process, and whether they have satisfied the affected parties;
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What affected parties consider
the most important elements of
PPAs or comfort/status letters;
The types of property cleanups
and reuse situations in which
PPAs or comfort/status letters
have been most useful;
The problems parties have
encountered while going
through the PPA or comfort/
status letter process and
recommendations for addressing
those problems; and,
Alternatives to PPAs and
comfort/status letters.
Survey Results
Comfort/Status Letters
Regional and private party
respondents were given the
opportunity to provide com-
ments on their experiences in
negotiating a comfort/status
letter and provide suggestions
for improving the process.
The majority of private parties
were satisfied with EPA's
comfort/status letter process.
The following is a summation
of the most consistent and
significant suggestions offered
by regional and private party
respondents.
Benefits:
Comfort/status letters, enable
the return of properties to more
environmentally beneficial uses.
Comfort/status letters help local
communities revive their
neighborhoods.
Comfort/status letters enhance the
economic viability of reuse projects.
Comfort/status letters are a relatively
fast and inexpensive tool to facilitate
brownfield redevelopment.
Improvements:
Accelerate the comfort/status letter
process.
Ensure that EPA and private parties
explore other options that could
alleviate concerns over Federal
Superfund liability.
Strengthen assurance and reduce
caveats in comfort/status letters.
Archive sites that are eligible for
comfort/status letters whenever
possible.
The comfort/status letter survey
findings indicate that regional
offices are effectively implement-
ing the policy and that the letters
have facilitated property reuse.
Respondents also reported that
comfort/status letters, for the most
part, are relatively easy to obtain.
EPA has already made progress
towards facilitating property reuse
and addressing some of the chal-
lenges presented by survey respon-
dents.
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Survey Results
PPAs
The majority of private parties
were satisfied with EPA's PPA
process. Although respon-
dents provided relatively few
comments, there were consis-
tent themes that underscore
the benefits and areas that
EPA had already identified for
improvement. Other factors
also came to light. For example,
the more fully characterized a
site, the faster EPA and
purchasers finalize the PPA.
Benefits:
• PPAs help local communities
revive their neighborhoods.
PPAs support diverse uses at
properties of varying sizes.
• PPAs enhance the economic
viability of reuse projects.
PPAs allow property reuse and
site cleanup to coincide.
PPAs preserve the Superfund
Trust Fund, thus allowing EPA
to clean up other hazardous
waste sites.
Improvements:
Streamline the PPA process.
Ensure that EPA and private
parties explore other options
that could alleviate concerns
over Federal Superfund
liability.
Provide guidelines on
appropriate consideration.
Improve communication with
states, local governments, and
local communities.
The PPA survey findings
indicate that EPA is effec-
tively implementing its PPA
guidance to encourage and
facilitate the cleanup and
reuse of Superfund sites and
that the number of successful
agreements has increased
significantly in recent years.
Respondents also reported
that EPA, for the most part,
has been responsive to pur-
chasers in meeting their needs
in a timely manner. At the
same time, the respondents
commented that EPA still
could improve the process of
obtaining PPAs. As outlined
on pages 50-51 of the Final
Report, EPA has already made
progress towards its goals of
improving the PPA process
and addressing the difficulties
private parties encountered
while obtaining a PPA.
For further information contact:
Elisabeth Freed - (202) 564-5117
Office of Site Remediation Enforcement
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APPENDIX D
189
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190
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Sample No Previous Superfund Interest Letter
Addressee
Re: [Insert name or description of property/site]
Dear [Insert name of party]:
I am writing in response to your letter dated —/—/-- concerning the property referenced
above. My response is based upon the facts presently known to the U.S. Environmental
Protection Agency (EPA) and is provided solely for informational purposes.
The federal Superfund Program, established to cleanup hazardous waste sites, is adminis-
tered by EPA in cooperation with individual states and local and tribal governments. Sites are
discovered by citizens, businesses, and local, state or federal agencies. When a potential
hazardous waste site is reported, EPA records the available information in its database, the
Comprehensive Environmental Response, Compensation, and Liability Information System
(CERCLIS). [NOTE: if a region practices pre-CERCLIS screening procedures, please include
language indicating that the procedures exists, whether or not the property is in the process of
being "pre-screened", and what this means to the inquirer. Adjustments may be needed to the
sample language contained in this letter] The fact that a site is listed in CERCLIS, however,
does not mean that an EPA response action will occur at the site or that ownership or operation
of the site is restricted or may be associated with liability. The fact that a property is not listed
in CERCLIS does mean that EPA is not currently planning to take any action under the federal
Superfund program to evaluate the site for inclusion on the National Priorities List (NPL) or to
conduct removal or remediation activities.
The above-referenced property was not identified in a search of the active and archived
records in the CERCLIS database. Please note that its absence from CERCLIS does not
represent a finding that there are no environmental conditions at this property that require
action or that are being addressed under another federal or state program. The absence of the
property from CERCLIS means that, at this time, EPA is not aware of any information
indicating that there has been a release or threat of release of hazardous substances at or from
the facility that needs to be assessed by the federal Superfund program and that no such
assessment has been performed by EPA in the past. I encourage you to contact [insert name of
state or local agency] to determine if they have information regarding the property and its
environmental condition. [Regions also are encouraged to check with other program offices to
determine whether EPA is addressing this site under another statute such as RCRA].
If you would like more comprehensive information on current or historical CERCLIS data
or to request an additional search, please contact the National Technical Information Service
(NTIS), a publishing clearinghouse for government information. The address is: U.S.
Department of Commerce, 5285 Port Royal Road, Springfield, VA22161 (telephone: (703)
487-4650; fax: (703) 321-8547.) CERCLIS information is also available on the Internet at
http://www.epa.gov/superfund/index.htmltfProducts. Should you have any further questions
about Superfund, please feel free to contact me at [insert phone number/address.]
Sincerely,
Regional Contact
cc: State contact
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Sample No Current Superfund Interest Letter
Addressee
Re: [Insert name or description of property]
Dear [Insert name of party]:
I am writing in response to your letter dated —I—I— concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmen-
tal Protection Agency (EPA) and is provided solely for informational purposes. For the reasons
stated below, EPA does not presently contemplate additional Superfund action for this property.
In response to growing concern over health and environmental risks posed by hazardous
waste sites, Congress enacted the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (CERCLA), establishing the Superfund program to clean up
these sites. The Superfund program is implemented by EPA in cooperation with individual
states and local and tribal governments. Sites are discovered by citizens, businesses, and local,
state, or federal agencies. After a potential hazardous waste site is reported to EPA, the
available information is recorded in the Comprehensive Environmental Response and Liability
Information System (CERCLIS), EPA's data management system for Superfund. Sites are
added to CERCLIS when EPA believes that there may be contamination that warrants action
under Superfund.
I. [FOR ARCHIVED SITES]
If, after an initial investigation, EPA determines that the contamination does not warrant
Superfund action, or if an appropriate Superfund response action has been completed, EPA will
archive that site from CERCLIS. This means that EPA believes no further federal response is
appropriate. Archived sites may be returned to the CERCLIS site inventory if new information
necessitating further Superfund consideration is discovered.
EPA has archived the above-referenced property from the CERCLIS site inventory because
[choose one of the following (a, b, or c) to complete the sentence]
[a.], following site evaluation activities, EPA determined that either no contamination was
found or conditions at the property did not warrant further federal Superfund involvement.
[b.] a federal removal action was completed and no further Superfund action is planned for
this property.
[c.] environmental conditions at the property are subject to requirements of [RCRA, UST,
OPA, etc.], however, no further interest under the federal Superfund program is warranted. For
further information concerning these requirements, please contact [name and telephone
number].
[Add to previous sentence] EPA, therefore, anticipates no need to take additional Superfund
enforcement, investigatory, cost recovery, or cleanup action at this archived site unless new
information warranting further Superfund consideration or conditions not previously known to
EPA regarding the site are discovered. EPA will maintain a dialogue with the states and will
continue to refer archived sites to the states for their review and consideration. You may want
to contact [insert state contact, address and telephone number] for further information.
II. [FOR PARTIAL OR FULL DELETIONS FROM NPL OR FOR A SITE BOUND-
ARY SITUATION]
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CERCLIS does not describe sites in precise geographical terms primarily because the
boundaries of the contamination and available information on those boundaries can be
expected to change over time. Once enough information regarding the nature and extent
of the release of the hazardous substances is gathered, EPA can more accurately delineate
the boundaries of a site. [Choose either (a), (b) or (c)].
(a) [If the property was included in a partial deletion from the NPL]
The above-referenced property [is/appears to be] situated within the [name of NPL site]
which is included on EPA's list of high priority hazardous waste CERCLIS sites known as
the National Priorities List (NPL). EPA, however, has determined that no further
investigatory or cleanup action is appropriate at the property under the federal Superfund
program. With the [insert State Agency] concurrence, EPA has decided to delete the
portion of the NPL site which contains the above-referenced property in accordance with
the Agency's A Procedures for Partial Deletions at NPL Sites" (OERR Directive Number
9320.2-11, August 30, 1996).
(b) [If the property is contained within the NPL site or is defined as the NPL site and
the site has been deleted from the NPL]
The identified property [is/appears to be] [select one: situated within the defined
geographical borders of the [name of NPL site] or defined as the [name of the NPL site]]
which is included on EPA's list of high priority hazardous waste CERCLIS sites known as
the National Priorities List (NPL). EPA, however, has determined that no further
investigatory or cleanup action is appropriate at the property. In consultation with the
[insert State Agency], EPA has decided to delete this property from the NPL in accordance
with "Deletion from the NPL" 40CFR 300.425(e).
(c) [If the property is not part of the CERCLIS site but is nearby]
The above-referenced property is located [near or adjacent to] the [name of CERCLIS
Site]. At this time, [statement as to the status of the site at present time: e.g., preliminary
assessment, site investigation, removal, remedial investigation or feasibility study is
underway or is completed]. Based upon available information, the property is not
presently considered by EPA to be a part of the [name of the CERCLIS site].
[Add to end of paragraph (a), (b), or (c)]
EPA, therefore, anticipates no need to take [any/additional] [Superfund enforcement-
include if PRP search and cost recovery are complete] investigatory or cleanup action at
this property unless new information warranting further Superfund consideration or
conditions not previously known to EPA regarding the property are discovered. You may
want to contact [insert state agency information] for further information. [If appropriate,
enclose a copy of the fact sheet on the CERCLIS site].
III. [IF ADMINISTRATIVE RECORD HAS BEEN COMPILED]
EPA has compiled an administrative record for the [name of CERCLIS or NPL Site]
which provides information on the nature and extent of the contamination found at the
site. This record is available at EPA Region — and at [location nearby to the site].
If you have any additional questions, or wish to discuss this information, please feel
free to contact [insert EPA contact and address].
Sincerely yours,
Regional Contact
cc: State contact
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Sample Federal Superfund Interest Letter
Addressee
Re: [insert name or description of property/site] [COMMENT1]
Dear [Insert name of party]:
I am writing in response to your letter dated —I—I— concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmen-
tal Protection Agency (EPA) and is provided solely for informational purposes.
In response to growing concern over health and environmental risks posed by hazardous
waste sites, Congress passed the Comprehensive Environmental Response Compensation and
Liability Act (CERCLA) and established the Superfund program to clean up these sites. The
Superfund program is implemented by EPA in cooperation with individual states and local and
tribal governments. Sites are discovered by citizens, businesses, and local, state and federal
agencies. After a potential hazardous waste site is reported to EPA, the site-specific
information is recorded in the Superfund database, the Comprehensive Environmental
Response and Liability Information System (CERCLIS). Sites are added to CERCLIS when
EPA believes that there may be contamination that warrants action under Superfund.
EPA initially screens a potential hazardous waste site to determine what type of action, if
any, is necessary. The Superfund program may then perform a preliminary assessment and site
investigation to determine whether contamination at a property is likely to require a federal
cleanup response, an evaluation to determine if a short term response action to eliminate or
reduce contamination is needed, and add the site to EPA's list of high priority hazardous waste
sites known as the National Priorities List (NPL).
EPA is examining [and/or addressing] the property referenced above in connection with the
[insert name of CERCLIS/NPL site] under the authority of CERCLA. [Insert appropriate
paragraphs from Sections I and/or II below. Use III for requests regarding the applicability of
a specific policy. Section IV represents the closing paragraph for all the Federal Superfund
Interest letters].
I. STATUS OF THE IDENTIFIED PROPERTY:
a. The above-referenced property is presently part of [or is] the [insert name of site.]
[Add paragraph from Section II for further information concerning the site.]
b. The above-referenced property may be part of the [insert name of site.] [Add
paragraph from Section II for further information concerning the site.]
II. STATUS OF EPAACTIVITIES
a. The site has been placed in the Comprehensive Environmental Response,
Compensation and Liability Information System ("CERCLIS") site inventory, but no studies or
investigations have been performed to date. Accordingly, EPA has not developed sufficient
information relating to the nature and extent of contamination to presently determine whether
further federal action is appropriate under Superfund. Additionally, EPA has not yet
determined which properties may be considered part of the site.
b. A Superfund site evaluation is planned at the [insert name of site] to investigate
possible contamination, and where it may be located. Accordingly, EPA has not yet deter-
mined which properties may be considered part of the [insert name of site.] [Add description
of site evaluation activity or attach relevant documents, if available.]
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c. A Superfund site evaluation activity is underway at the [insert name of site] to
investigate possible contamination, and where it may be located. Accordingly, EPA has not yet
determined which properties may be considered part of the [insert name of site.] [Add
description of site evaluation activity or attach relevant documents, if available.]
d. The [insert name of site] has been proposed to [or placed on] the Superfund
National Priorities List ("NPL"). [Refer to and/or attach Federal Register notice.] The
description of [insert name of site] contains EPA's preliminary evaluation of which properties
are affected, although the actual borders of the Superfund site could change based on further
information regarding the extent of contamination and appropriate remedy.
e. A Superfund Remedial Investigation/Feasibility Study (RI/FS) is planned at [insert
name of site.] [Add description of RI/FS and ensuing activities or attach relevant documents, if
available].
f. A Superfund Remedial Investigation/Feasibility Study (RI/FS) is underway at
[insert name of site.] [Add description of RI/FS and ensuing activities or attach relevant
documents, if available].
g. A Superfund Remedial Investigation/Feasibility Study (RI/FS) has been completed
at [insert name of site.] [Add description of RI/FS and ensuing activities or attach relevant
documents, if available].
h. EPA is planning a Superfund Remedial Design/Remedial Action (RD/RA) at [insert
name of site.] [Insert pertinent information such as a description of the ROD and RD/RA, such
as date of issuance of the ROD, schedule for cleanup; Fund lead or PRP implementation,
cleanup progress to date; a schedule for future cleanup, especially a final completion date,
cleanup levels to be achieved, and anticipated future land use of the Site, or attach relevant
informational documents].
i. EPA has commenced a Superfund Remedial Design/Remedial Action (RD/RA) at
[insert name of site.] [Insert pertinent information such as a description of the ROD and RD/
RA, such as date of issuance of the ROD, schedule for cleanup; Fund lead or PRP implementa-
tion, cleanup progress to date; a schedule for future cleanup, especially a final completion
date, cleanup levels to be achieved, and anticipated future land use of the Site, or attach
relevant informational documents].
j. Superfund Remedial Design/Remedial Action (RD/RA) has been completed at
insert name of site.] [If possible provide information on cleanup achievements, whether it was
PRP or Fund-lead, etc., or attach relevant informational documents, if available] A Five-year
Review will [will not] be necessary at [insert name of site.] [Also, describe status with respect
to deletion from the NPL.]
k. A removal action is planned at [insert name of site.] [provide information on
cleanup achievements, whether it was PRP or Fund-lead, and contact number for On-Scene
Coordinator, cost recovery staff, or ORC attorney, or attach relevant informational documents,
if available.]
1. A removal action is ongoing at [insert name of site.] [provide information on
cleanup achievements, whether it was PRP or Fund-lead, and contact number for On-Scene
Coordinator, cost recovery staff, or ORC attorney, or attach relevant informational documents,
if available.]
m. A removal action has been completed at [insert name of site.] [provide information
on cleanup achievements, whether it was PRP or Fund-lead, and contact number for On-Scene
Coordinator, cost recovery staff, or ORC attorney, or attach relevant informational documents,
if available.]
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III. FOR PARTIES OR SITES COVERED BY AN EPA POLICY/STATUTE/REGULA-
TION
Dear [Insert name of party]:
I am writing in response to your letter dated —I—I— concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmen-
tal Protection Agency (EPA).
As you may know, the above-referenced property is located within or near the [insert name
of CERCLIS site.] EPA is currently taking [insert description of any action that EPA is taking
or plans to take and any contamination problem.]
[Choose either paragraph [a] or [b]]:
[a. For situations when a party provides information showing that 1) a project found to be
in the public interest is hindered or the value of a property is affected by the potential for
Superfund liability, and 2) there is no other mechanism available to adequately address the
party's concerns.]
The [insert policy citation/statutory/regulatory provision], provides that EPA, in an exercise
of its enforcement discretion, will not take an enforcement action against parties who meet the
conditions and criteria described in the [insert policy/statute/regulation]. Based upon the
information currently available to EPA, EPA believes that the [policy/statutory/regulatory
provision] applies to [you/your] situation. I am enclosing a copy of the [policy/statutory or
regulatory provision and fact sheet, if appropriate] for your review.
[b. For situations when a party does not provide information showing that 1) a project
found to be in the public interest is hindered or the value of a property is affected by the
potential for Superfund liability, and 2) there is no other mechanism available to adequately
address the party's concerns, attach the appropriate policy/statutory or regulatory language and
insert the following language]:
The [insert policy citation/statutory/regulatory provision], provides that EPA, in an exercise
of its enforcement discretion, will not take an enforcement action against parties who meet the
conditions and criteria described in the [insert policy/statute/regulation]. [EPA currently does
not have enough information available to determine whether the [insert policy/statutory/
regulatory citation] applies to your situation OR EPA, based upon the current information
available, believes that you/your circumstances do not meet the criteria/provisions of the
[policy/statute/regulation]. I, however, have enclosed a copy of the [policy/statutory or
regulatory language] for your own review and determination of its applicability to you [or your
situation].
IV. CLOSING PARAGRAPH
EPA hopes that the above information is useful to you. [Optional—In addition, we have
included a copy of our latest fact sheet for the (insert name of site.)] Further, we direct your
attention to the [insert location of site local records repository] at which EPA has placed a
copy of the Administrative Record for this site. [Include for section III letters only: This letter
is provided solely for informational purposes and does not provide a release from CERCLA
liability] If you have any questions, or wish to discuss this letter, please feel free to contact
[insert EPA contact and address].
Sincerely,
Regional Contact
Enclosure
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Sample State Action Letter
Addressee
Re: [Insert name or description of site/property]
Dear [Insert name of party]:
I am writing in response to your letter dated —I—I— concerning the property referenced
above. My response is based upon the facts presently known to the United States Environmen-
tal Protection Agency (EPA) and is provided solely for informational purposes.
The problem of investigating, responding to, and cleaning property contaminated by
hazardous substances is a complex one. In an effort to maximize resources and ensure timely
responses, EPA and the states work together in responding to properties posing threats of
environmental contamination. Although the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA, also known as "Superfund") is a federal law that
establishes a federal program, the law also envisions and provides for state involvement at sites
handled under the Superfund program. CERCLA explicitly describes scenarios under which a
state may have a significant and prominent role in site activities.
I. [INSERT THIS SECTION FOR SITES DESIGNATED STATE-LEAD IN CERCLIS]
The site about which you have inquired, [site name], is a site that falls under the federal
Superfund program, but has been designated a state-lead. A state-lead designation means that
although the site remains in EPA's inventory of sites and may be on EPA's list of highest
priority sites, the National Priorities List (NPL), implementing responsibilities to investigate
and cleanup that site rest with the state of [insert name of state]. Specifically, [insert name of
state] is responsible for the day-to-day activities at the site and will ultimately recommend the
cleanup for the site. EPA's role is to review some of [insert name of statej's milestone
documents, if appropriate, provide technical assistance if needed, and, in most cases, approve
the final cleanup method recommended by the state. The state and EPA work together closely,
pursuant to the terms of a Memorandum of Agreement (MO A) to ensure that site responses are
conducted in a timely manner and that interested parties are included in site activities.
Because EPA's day-to-day role at the [insert name of site] is somewhat limited, you should
check with the [your state or state's environmental program] for more detailed information on
site activities, [insert name of state] is best able to provide you with detailed information
about the site and public documents regarding site activity. [Regions should include the state
RPM name and number, or at least the state's applicable department name and number].
II. [INSERT THIS SECTION FOR SITES DESIGNATED ADEFERRED TO STATE
AUTHORITIES PURSUANT TO EPA'S SUPERFUND DEFERRAL POLICY]
The site about which you have inquired, [site name], is a site that falls under the federal
Superfund program, but for which EPA does not have the day-to-day responsibility. Specifi-
cally, the [site name] site is not proposed for or listed on the NPL. EPA has agreed not to
propose or list the [site name] site on the NPL while the state of [name of state] addresses the
environmental conditions at the property under its own state authorities. While the [site name]
cleanup is being conducted, EPA intends to act in accordance with "Guidance on Deferral of
NPL Listing Determinations While States Oversee Response Actions" (OSWER Dir. 9375.6-
11, May 3, 1995). A copy of this guidance is enclosed for your review and should help you to
better understand EPA's role and intentions at sites for which activities are deferred to state
authorities.
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III. [INSERT FOR A SITE DESIGNATED "DEFERRED" THAT NOW HAS BEEN
ARCHIVED]
The conditions at the above-referenced property were addressed by [name of state] pursuant
to EPA's "Guidance on Deferral of NPL Listing Determinations While States Oversee
Response Actions" (OSWER Dir. 9375.6-11, May 3, 1995). Upon completion of cleanup
activities at the [site name], the property has been removed from EPA's inventory of hazardous
waste sites, the Comprehensive Environmental Response, Compensation, and Liability
Information System (CERCLIS). Consistent with EPA's state deferral guidance, EPA does not
intend to further consider the property for listing on the NPL [or to take additional Superfund
enforcement, investigatory, cost recovery, or clean up action at the property] unless EPA
receives new information about site conditions that warrants reconsideration.
A copy of EPA's "A Guidance on Deferral of NPL Listing Determinations While States
Oversee Response Actions" is enclosed for your review, so that you may better understand the
nature of EPA's role at the [site name]. For detailed information about site activities and
conditions, you may wish to contact [insert name of state or state's environmental department],
the agency responsible for overseeing activities on the property.
IV. [INSERT FOR A SITE ADDRESSED UNDER A STATE VCP THAT HAS AN MOA
IN PLACE]
The site about which you have inquired, [site name], is a site contained in EPA's inventory
of hazardous waste sites, the Comprehensive Environmental Response, Compensation, and
Liability Information System. The [site name] site is not, however, proposed for or listed on
EPA's list of highest priority sites, the National Priorities List (NPL). EPA and the state of
[insert name of state] have agreed, pursuant to a memorandum of agreement (MOA) between
the two agencies, to place the site under the authorities of [insert name of statej's Voluntary
Cleanup Program. For specific details regarding the activities at [site name] or the MOA, you
may wish to contact the [state name or department responsible for implementing the MOA].
If you have any additional questions, or wish to discuss this information, please feel free to
contact [insert EPA contact and address].
Sincerely yours,
Regional Contact
cc: State contact
[COMMENTl](Insert name of Site and identification of property identified in the initial
request letter)
[COMMENT2]Select the following paragraph(s) under (A) which apply. Add property-
specific information as appropriate.
[COMMENTS] [If appropriate, attach and refer to depiction of Site to illustrate]
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APPENDIX E
199
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Headquarters
401M Street, SW
Washington, DC 20460
Office of Site Remediation
Enforcement
Mail Code: 2273A
Fax: 202-564-0093
Tessa Hendrickson
Policy and Guidance Branch
202-564-6052
hendrickson.tessa@epa.gov
Phil Page
Policy and Guidance Branch
202-564-4211
page.phillip@epa.gov
Elisabeth Freed
Policy and Guidance Branch
202-564-5117
freed.elisabeth@epa.gov
Outreach and Special Projects
Staff
(Brownfields Lead Office)
Mail Code: 5101
Fax: 202-260-6606
Linda Garczynski, Director
202-566-2731
garczynski.linda@epa.gov
Ann McDonough,
Associate Director
202-566-2729
mcdonough.ann@epa.gov
Office of Emergency and Reme-
dial Response
Mail Code: 5204G
Fax: 703-603-9104
Melissa Friedland (SRI)
703-603-8864
friedland.melissa@epa.gov
John Harris (SRI)
703-603-9075
harris.john@epa.gov
Technology Innovation Office
MailCode:5102G
Fax: 703-603-9135
Daniel Powell
703-603-7196
powell. daniel@epa. gov
Office of Environmental Justice
Mail Code: 2201A
Fax: 202-564-0740
Charles Lee
202-564-2698
lee.charles@epa.gov
Office of General Counsel
Mail Code: 2366A
Fax:202-564-5531
Karen Kraus (Superfund)
202-260-4139
kraus.karen@epa.gov
Dawn Messier (RCRA)
202-564-5517
me ssier. daw n@epa. gov
Office of Solid Waste (RCRA)
Mail Code: 5303W
Fax: 703-308-8658
Mike Fitzpatrick
703-308-8411
fitspatrick.michael@epa.gov
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Sara Rasmussen
703-308-8399
rasmussen.sara@epa.gov
Regional Superfund
Brownfields Contacts
Region 1 -CT, ME, MA, NH, Rl,
VT
One Congress Street
Boston, MA, 02114-2023
Fax: 617-918-1291
Lynne Jennings
617-918-1210
jennings.lynn@epa.gov
Rona Gregory*
617-918-1096
gregory.rona@epa.gov
Audrey Zucker*
zucker.audrey@epa.gov
Region 2-NJ, NY, PR, VI
290 Broadway, 18th Floor
New York, NY 10278
Fax: 212-637-4360
Larry D'Andrea
212-637-4314
dandrea.larry@epa.gov
Michael Mintzer*
212-637-3168
mintzer. michael@epa. gov
Region 3 - DE, DC, MD, PA, VA,
WV
1650 Arch Street
Philadelphia, PA 19103
Fax: 215-814-5518
Tom Stolle
215-814-3129
stolle.tom@epa.gov
Heather Gray Torres*
215-814-2696
torres.heathergray@epa.gov
Region 4 - AL, FL, GA, KY, MS,
NC,SC,TN
Atlanta Federal Center
6 IForsyth Street
Atlanta, GA 30303
Fax: 404-562-8628
Mickey Hartnett
404-562-8661
hartnett. mickey @epa. gov
Janet Magnuson*
404-562-9581
magnuson.janet@epa.gov
Region 5 - IL, IN, Ml, MN, OH,
Wl
77 West Jackson Boulevard
Chicago, IL 60604-3507
Fax:312-353-7190
Deborah Orr
312-886-7576
orr.deborah@epa.gov
Peter Felitti*
312-886-5114
felitti.peter@epa.gov
Region 6 - AR, LA, NM, OK, TX
First Interstate Bank Tower at
Fountain Place
1445 Ross Avenue, Suite 1200
Dallas, TX 75202-2733
Fax: 214-665-6660
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Stan Hitt
214-665-6736
hitt. Stanley @epa. gov
Joseph Compton*
214-665-8506
compton.joseph@epa.gov
Region 7 - IA, KS, MO, NE
901 North 5th Street
Kansas City, KS 66101
Fax: 913-551-7063
Susan Klein
913-551-7786
klein.susan@epa.gov
Bob Richards*
913-551-7502
richards.robert@epa.gov
Region 8 - CO, MT, ND, SD, UT,
WY
999 18th Street, Suite 500
Denver, CO 80202-2405
Fax: 303-312-6071
Kathie Atencio
303-312-6803
atencio.kathie@epa.gov
Suzanne Bohan*
303-312-6925
bohan. suzanne@epa.gov
Region 9 - AZ, CA, HI, NV, AS,
GU
75 Hawthorne Street
San Francisco, CA 94105
Fax: 415-744-1796
Jim Hanson
415-744-2237
hanson.jim@epa.gov
Bill Keener*
415-744-1356
keener.bill@epa. gov
Region 10-AK, ID, OR, WA
1200 Sixth Avenue
Seattle, WA 98101
Fax: 206-553-0124
Tim Brincefield
206-553-2100
brincefield.tim@epa. gov
Cara Steiner-Riley*
206-553-2569
steiner-riley. cara@epa. gov
^Indicates Regional BrownfieM Attorney
Regional RCRA
Brownfields Contacts
Matt Hoagland
USEPA Region 1 (MC HBT)
One Congress Street
Boston, MA 02114-2023
617-918-1361
hoagland.matt@epa.gov
Michael Poetzch
USEPA Region 2
290 Broadway/ 22nd Floor
New York, NY 10007-1866
212-637-4147
poetzch.michael@epa.gov
Deborah Goldblum
USEPA Region 3 (MC 3RC30)
1650 Arch Street
Philadelphia, PA 19103-2029
215-814-3432
goldblum.deborah@epa.gov
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Susan Capel
USEPA Region 4
Atlanta Federal Cente
6 IForsyth Street
Atlanta, GA 30303-8960
404-562-9655
capel. susan@epa.gov
Ann Wentz
USEPA Region 5 (MC DW-8J)
77 West Jackson Boulevard
Chicago, IL 60604-3590
312-886-8097
wentz.ann@epa.gov
Cathy Gilmore
USEPA Region 6 (MC 6 EN-HX)
1445 Ross Avenue, Suite 1200
Dallas, TX 75202-2733
214-665-6755
gilmore.cathy@epa.gov
Stephanie Doolan
USEPA Region 7 (MC
RCAPARTD)
90IN. 5thStreet
Kansas City, KS 66101
913-551-7719
doolan.stephanie@epa.gov
Bill Rothenmeyer
USEPA Region 8 (MC 8 P-HW)
999 18th Street, Suite 300
Denver, CO 80202-2466
303-312-6045
rothenmeyer. william@epa. gov
Karen Ueno
USEPA Region 9 (MC WST-2)
75 Hawthorne Street
San Francisco, CA 94105
415-744-2023
ueno.karen@epa.gov
Mike Slater
USEPA Region 10
Oregon Operations Office
811 S.W. 6th Avenue, third floor
Portland, OR 97204
slater.mike@epa.gov
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