oEPA
United States
Environmental Protection
Agency
Superfund Task Force Recommendation 13
Examine Opportunities to Achieve Protective Cleanup at
NPL-Caliber Sites Without Listing on the NPL
Summary of Findings
July 2019
Office of Site Remediation Enforcement
Office of Enforcement and Compliance Assurance
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CONTENTS
EXECUTIVE SUMMARY
Contaminated sites that are on the National Priorities
List (NPL) follow the processes for investigation, risk
assessment and response actions described in the
National Oil and Hazardous Substances Pollution
Contingency Plan (NCP). In response to
Recommendation 13 of the May 2017 Superfund Task
Force Report, this workgroup focused its efforts on
providing clarity for approaches that can be used to
achieve protective cleanups at NPL-caliber sites not
proposed for inclusion on the NPL. The workgroup
examined existing federal, state and tribal approaches
that may be used in lieu of designating releases as
national priorities for long-term remedial evaluation and
response (i.e., adding to the NPL).
The workgroup defined "NPL-caliber" for purposes of
this evaluation and reviewed cleanup approaches other
than adding a site to the NPL. The workgroup also
developed a matrix of key elements to be considered
when evaluating the use of an alternate authority at an NPL-caliber site. Finally, the workgroup
evaluated a sample of NPL-caliber sites that are currently using non-NPL approaches for.
The workgroup's summary findings include several conclusions and recommendations. Principal
among them are:
• The success of using non-NPL approaches at sites with responsible parties is dependent on a
commitment by the responsible parties to fully address the contamination at the site in
cooperation with the state/tribe, the EPA, and the affected communities.
• There are established options for addressing NPL-caliber sites in lieu of adding the site to
the NPL. The EPA should continue to assess all available options when considering
potential responses at NPL-caliber sites and continue to consult with other federal, state and
tribal remedial programs on what cleanup approach to use.
• A number of best management practices were identified by the workgroup. The EPA
Regions, states, and tribes should continue to strive to incorporate these best management
practices.
• Establishing expectations on applicable cleanup requirements and clearly defining the
administrative path will minimize the need for costly revisions to the cleanup plan.
• The EPA should check-in on progress at NPL-caliber sites using non-NPL approaches to
ensure cleanup actions are proceeding as expected.
While the Superfund program has the most significant experience addressing NPL-caliber sites,
response activities under other approaches may be appropriate and available in certain situations.
EXECUTIVE SUMMARY
i
Workgroup Members
iii
Acronyms and Abbreviations
iii
INTRODUCTION
1
BACKGROUND
1
IMMINENT and SUBSTANTIAL
ENDANGERMENT
3
ANALYSIS of APPROACHES
4
KEY ELEMENTS, LESSONS
LEARNED & BEST PRACTICES
9
SUMMARY OF CONCLUSIONS
and RECOMMENDATIONS
14
REFERENCES/ADDITIONAL
INFORMATION
15
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Notably, the EPA has deferred thousands of sites from the Superfund program to other cleanup
approaches. With the shared responsibility for cleaning up sites, we know there are opportunities for
the EPA, states and tribes to expedite cleanup, reduce risks to human health and the environment, and
make property available for reuse, a goal of the Superfund Task Force.
11
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SFTF Recommendation 13 Workgroup
Karen Melvin, (Former) Director, Hazardous Site Cleanup Division, Region 3, EPA
Paul Leonard, Acting Director, Superfund and Emergency Management Division, Region 3, EPA
Nancy Browne, Office of Site Remediation Enforcement, OECA, EPA
Meghan Cassidy, Chief, Superfund Technical & Enforcement Support Section, Region 1, EPA
Patrick Hamblin, NPL Coordinator, Site Assessment and Grants Section, Region 5, EPA
Katie Hatt, Office of Site Remediation Enforcement, OECA, EPA
Randy Hippen, Office of Superfund Remediation and Technology Innovation, OLEM, EPA
Steve Hirsh, Associate Director, Federal Facilities Remediation & Site Assessment, Region 3, EPA
Charlie Root, Chief, DE, VA, WV Remedial Branch Region 3, EPA
Justin Williams, Virginia Department of Environmental Quality
Amy Brittain, Oklahoma Department of Environmental Quality
Yazmine Yap-Deffler, Chief, Site Assessment & Non-NPL Federal Facilities Branch, Region 3, EPA
Acronyms and Abbreviations
ASTSWMO: Association of State and Territorial Solid Waste Management Officials
BFPP: Bona-fide Prospective Purchaser
CERCLA: Comprehensive Environmental Response, Compensation and Liability Act
CWA: Clean Water Act
GMUC: Groundwater Migration Under Control
HEUC: Human Exposures Under Control
HRS: Hazard Ranking System
ISE: Imminent and Substantial Endangerment
MOA: Memorandum of Agreement
MOU: Memorandum of Understanding
NCP: National Oil and Hazardous Substances Pollution Contingency Plan
NPL: National Priorities List
NRC: Nuclear Regulatory Commission
OCA: Other Cleanup Activity
OECA: Office of Enforcement and Compliance Assurance
OLEM: Office of Land and Emergency Management
OSWER: Office of Solid Waste and Emergency Response (now OLEM)
PRP: Potentially Responsible Party
RCRA: Resource Conservation and Recovery Act
SAA or SA Approach: Superfund Alternative Approach
SACM: Superfund Accelerated Cleanup Model
SDWA: Safe Drinking Water Act
SEMS: Superfund Enterprise Management System
SPIM: Superfund Program Implementation Manual
SWRAU: Sitewide Ready for Anticipated Use
in
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INTRODUCTION
Contaminated sites that are on the National Priorities List (NPL) follow the processes described in the
National Oil and Hazardous Substances Pollution Contingency Plan (NCP) when undertaking cleanup,
these processes are thorough and often time-consuming. Sites that are identified as "NPL-caliber" (i.e.,
sites with risks and complexities similar to those at sites on the NPL) but are not on the NPL, can also be
slow in moving toward active cleanup for a number of reasons. However, at some NPL-caliber sites,
non-NPL approaches may be used to address contamination so that cleanups may happen faster than the
standard Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)/NCP
processes.
Currently, the EPA Regions, in consultation with their state and tribal partners determine whether
adding an eligible site on the NPL is the best option to achieve site cleanup. Other options considered in
lieu of adding an eligible site to the NPL include: referral to the EPA removal program; deferral to the
Resource Conservation and Recovery Act (RCRA) program; formal state deferral; the Superfund
Alternative Approach (S AA or SA Approach); cleanup under other state, tribal, local or federal
government programs ("Other Cleanup Activity"); and infrequently, deferral to the Nuclear Regulatory
Commission (NRC) as appropriate. Some contaminants are addressed using other authorities in
collaboration with CERCLA, including RCRA, the Clean Water Act, the Safe Drinking Water Act,
and/or state and local authorities.
Workgroup Charge
The workgroup focused on providing clarity on non-NPL approaches that can be used to achieve
protective cleanups at NPL-caliber sites. The workgroup examined other federal, state and tribal
approaches that may be used in lieu of listing a site on the NPL, and it evaluated the status of a sample
of NPL-caliber sites using non-NPL approaches. Clarifying how non-NPL approaches can be used to
achieve cleanup may result in addressing unacceptable risks sooner.
BACKGROUND
The Superfund remedial site assessment process begins once sites are brought to the attention of the
Superfund remedial site assessment program. Site assessments are performed to determine whether the
site is eligible for addition to the NPL. The term "NPL Caliber" has historically been defined and used
in the remedial site assessment program to distinguish sites that are likely to pose the greatest relative
present or potential threat and need further investigation by a cleanup program via addition to the NPL
or an alternative cleanup approach. Generally, these sites are where, based on an initial assessment, a
release of hazardous substances, pollutants or contaminants1 has occurred and may present a threat to
human health or environmental receptors. These circumstances would likely result in a preliminary
Hazard Ranking System (HRS) score of 28.50 or greater, making the site eligible for addition to the
NPL.
1 CERCLA hazardous substances, pollutants, and contaminates are defined in CERCLA sections 101(14) and 101(33), except
where otherwise specifically noted in the HRS.
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EPA guidance (OSWER 9320.2-07A and 9203.1-051, Vol. 1 No. 4) identified the following as
examples of the types of sites which are likely to be of NPL-caliber depending upon preliminary HRS
scoring and related issues:
• Public drinking water supplies are contaminated or have the potential to become contaminated
with a hazardous substance, pollutant or contaminant;
• Private wells are contaminated with a hazardous substance, pollutant or contaminant above a
health-based benchmark;
• Soils on school, daycare center or residential properties are contaminated by a hazardous
substance, pollutant or contaminant above background levels;
• A hazardous substance, pollutant or contaminant is detected above background in an off-site air
release in a populated area;
• A highly toxic substance known to bioaccumulate (e.g., PCBs, mercury, dioxin, PAHs) is
discharged into surface waters;
• Sensitive environments (e.g., wetlands or critical habitats for endangered species) are
contaminated with a hazardous substance, pollutant or contaminant above background levels.
Some non-NPL approaches may achieve site cleanup at the same or faster pace and at less cost to the
federal government and to the potentially responsible party (PRP) than using the NPL approach.2 Non-
NPL approaches help preserve limited federal Superfund resources for use at the nation's most
contaminated sites where no other feasible cleanup option exists. Environmental laws and regulations
governing site cleanup vary depending on the non-NPL approach selected.
Adding a site to the NPL or using a different non-NPL approach can be considered if the current non-
NPL approach does not achieve expected results and the site continues to pose health and environmental
threats commensurate with an NPL-caliber site.
2 Non-NPL cleanups may or may not include a CERCLA equivalent risk assessment or achieve the same cleanup standards as
those required by the NCP, which as the implementing regulation for CERCLA, provides the blueprint for CERCLA
cleanups.
2
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Figure 1 presents a simplified process flow diagram for making NPL-caliber decisions and selecting a
remedial cleanup approach.
Superfund Remedial Site Assessment Process
NPL-Caliber Decisions and Remedial Cleanup Approaches
NPL-Caliber
Site Discovery
Remedial Ste
Assessment based
on Hazard Ranking
System (HRS)
Model
Actual or Potential
HRS Score
Kefer/defer to remedial cleanup
program aooroath
=> 78.5
\
(Technical scoring issue
or otherwise would likely
result in No Action ROD)
Non MPL-Cahber
<28.5
NFRAP
Referrals to Removal
Remedial Cleanup Approaches
NFL
Non-NPL
• RCRA
• Other Cleanup Activity (OCA); Cleanup
under state, tribal, local or other federal
government programs
• Superfund Alternative Approach (SAA)
• Format State Deferral
• Nuclear Regulatory Commission
'Higher-risk sites can be referred to ERA'S Removal program for short-term cleanup attention. If additional remedial cleanup Is needed, these
ates wlfl transition to one of the NPl-callber cleanup approaches listed above.
Figure 1
IMMINENT and SUBSTANTIAL ENDANGERMENT
Several statutes that the EPA administers contain "imminent and substantial endangerment" (ISE)
provisions similar to CERCLA. The workgroup evaluated the environmental statutes that EPA
implements that have similar ISE provisions that could be used to address sites posing a threat to human
health and the environment and the thresholds for their use. Additionally, the workgroup evaluated if the
ISE determinations currently in use are adequate to support use of alternate authorities.
The workgroup also reviewed existing guidance on ISE authorities. These documents provide a useful
overview of the ISE authorities and their thresholds for use:
1. OECA's Cookbook on Imminent and Substantial Endangerment ("OECA ISE Cookbook")
available at http:/'/intranet.epa.gov/oeca/oce/wced/ise/isecntx.html.
2. Use of 106 to Address Endangerments that may Also be Addressed Under Other Statutes
(Jan. 18/2001) (this document includes a helpful summary chart in the back) available at
https://www epa.gov/enforcement/guidance-using-cercla-section-106-address-cross-media-
ise-situations.
The EPA Regions generally document an ISE determination in the site record. The workgroup reviewed
existing regional ISE determinations to assess their content and usefulness across several statutory
authorities. The review concluded that revisions to current ISE determination language are not necessary
to support use of alternative authorities.
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The workgroup also reviewed existing regional delegations of authority for Superfund program staff
exercising non-CERCLA ISE authorities and determined that additional guidance is not needed. Regions
may refer to their current delegations to determine whether they have the authority to address NPL-
caliber sites using non-CERCLA authorities.
ANALYSIS OF APPROACHES
The cleanup approach selected for NPL-caliber sites is based on policy (e.g., environmental justice,
community engagement, state concurrence letter), regulatory (e.g., ongoing work under another
program) and legislative factors that impact the site, along with consideration of the involvement and
interest of other stakeholders. Cleanup approaches include adding the site to the NPL and other non-
NPL approaches. Non-NPL approaches may include using Superfund removal authorities, the SA
Approach, RCRA Corrective Action, cleanup under the NRC, and certain state, tribal, municipal or
other federal government cleanup programs. Our evaluation excluded referral to the EPA's removal
program which is generally for emergency and shorter-term cleanups.
For this recommendation, the workgroup focused on non-NPL, longer-term cleanup approaches. These
approaches include:
• Deferral to RCRA Subtitle C corrective action;
• Deferral to Nuclear Regulatory Commission;
• Other Cleanup Activity;
• Formal State Deferral; and
• Superfund Alternative Approach.
The workgroup's evaluation also included reviewing program measurement criteria and existing
guidance and data to compare and contrast these longer-term non-NPL cleanup approaches. Source
documents included EPA's Superfund Program Implementation Manual (SPIM)-, related EPA
regulations, policy and guidance documents, and General Accountability Office (GAO) reports.
NPL and Non-NPL approaches are summarized in the SPIM. Specifically, Chapter 6 Remedial Site
Assessment, Section VI.A.9 Cleanup Alternatives briefly describes the various cleanup approaches sites
can be subject to when completed assessment work determines a site is eligible for the NPL and needs
remedial cleanup. Links to more detailed information regarding cleanup approaches are included in
Chapter 6 of the SPIM.
The following is a brief synopsis of each approach that includes a checklist of relevant attributes for
each approach and where to find additional information.
Approach: Deferral to RCRA
EPA policy4 is to defer placing sites on the NPL that can be comparably addressed under RCRA Subtitle
C corrective action authorities; however, there are certain exceptions to this policy (e.g., uncooperative
3 Available on the Agency's website at https:,
4 RCRA deferral policy 54 Fed. Reg. 41004 (October 4,
jrogram-imi
1989)
4
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or bankrupt responsible parties). RCRA sites not subject to Subtitle C can continue to be considered for
NPL listing or another non-NPL approach.
•S Number of Sites Deferred to RCRA: Approximately 2,200 since inception; 7 over past 5 years
•S Can Include Proposed NPL Sites (Y/N): Yes
•S Applicable Law Governing Cleanup: RCRA
•S NCP-Equivalent Cleanup Required (Y/N): Yes (deemed similar)
•S Initiation Requirements: Written acceptance by RCRA program
•S Level of Superfund Oversight: None
•S Frequency of Progress Reporting by Superfund: None
•S Closeout Documents/Procedures Required by Superfund: No
•S Superfund Progress Profile Required (Y/N): No
S Included in National SF Cleanup Metrics (HEUC, GMUC, SWRAU, etc.) (Y/N): No
•S Additional Information: Interim Guidance in Response to the OIG Audit "Superfund Sites
Deferred to RCRA", OSWER 91 xmber 1999 and Memo Regarding Coordination
between RCRA Corrective Action Closure and CERCLA Site Activities, September 1996.
Approach: Other Cleanup Activity (OCA)
NPL-caliber sites may be addressed under a state, tribal, municipal, or other federal government
environmental cleanup program without EPA Superfund enforcement or oversight. The EPA
collectively refers to these sites as Other Cleanup Activity sites.
The EPA expects remedial-type work at these sites will be completed under the laws, regulations and
policies applicable to the state, tribe or other federal agency managing cleanup work. Remedial-type
work can include comprehensive site investigations in support of making cleanup determinations,
interim cleanup actions, removals or final cleanup decisions, including decisions that cleanup is not
required.
For this definition, 'without EPA enforcement or oversight' means that there is no continuous and
substantive involvement by the EPA while remedial-type work is ongoing, such as routinely reviewing
relevant documents and providing comments to the non-EPA party.
The SPIM requires the EPA to perform a monitoring role on the status of cleanup work at these sites,
including checking in with the lead regulator on cleanup progress at the site, at least once every two
years. If substantive federal Superfund involvement becomes necessary later, the EPA will work with
the lead regulator to determine an alternative approach to address the site cleanup.
S Number of Other Cleanup Activity Sites: Approximately 1,800 since inception; 150-200 over
past five years
•/ Can Include Proposed NPL Sites (Y/N): No
S Applicable Law Governing Cleanup: State, tribe, local and other federal environmental laws
•f NCP-Equivalent Cleanup Required (Y/N): No
S Initiation Requirements: Documentation or other information indicating lead regulator is
pursuing a non-NPL cleanup
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¦S Level of Superfund Oversight: Minimal - SPIM requires site progress reviews with lead
regulator at least once every two years
•S Frequency of Progress Reporting by Superfund: No periodic reporting to public on site progress
•S Closeout Documents/Procedures Required by Superfund: Close-out report or equivalent
document submitted by the lead-regulator to Superfund or other confirmation obtained by
Superfund program
•S Superfund Progress Profile Required (Y/N): No
S Included in National SF Cleanup Metrics (HEUC, GMUC, SWRAU, etc.) (Y/N): No
•S Additional Information: The current SPIM Chapter 6, Remedial Site Assessment describes
additional requirements and attributes of this approach, including using SEMS to track the date
the EPA last reviewed site progress.
Approach: Formal State Deferral
The EPA's Formal State Deferral policy is an administrative mechanism enabling states and tribes,
under their own laws, to conduct a response action at sites that the EPA would otherwise not soon
address. The Formal State Deferral policy stresses a CERCLA-equivalent cleanup process.
S Number of Sites Deferred to State: Approximately 42 since inception; 5 over past five years
•/ Can Include Proposed NPL Sites (Y/N): Yes
S Applicable Law Governing Cleanup: State/tribal authorities
•f NCP-Equivalent Cleanup Required (Y/N): Yes
S Initiation Requirements: State deferral agreement
S Level of Superfund Oversight: Moderate - Deferral guidance allows flexibility on a site-specific
basis but does require EPA to check in with the state on site progress at least annually.
S Frequency of Progress Reporting by Superfund: No periodic reporting to public on site progress
S Closeout Documents/Procedures Required by Superfund: Close-out report or equivalent
document submitted by the lead-regulator to Superfund or other confirmation obtained by
Superfund program
S Superfund Progress Profile Required (Y/N): No
•f Included in National SF Cleanup Metrics (HEUC, GMUC, SWRAU, etc.) (Y/N): No, generally
•/ Additional Information: Guidance on Deferral of NPL Listing Determinations While States
Oversee Response Actions, OSWER 9375.6-11, May 1995; Modifications to the State Deferral
Program in Response to Office of the Inspector General Report No. E1SFFS 20-8100234
State Deferrals: Some Progress, but Concerns for Long-Term Protectiveness Rema: il
2002
Superfund Alternative Approach
This EPA policy enables an NCP-equivalent cleanup based on an enforceable agreement, using
CERCLA authority, between a willing and capable Potential Responsible Party (PRP) and the EPA.
Where feasible and appropriate, the SAA is generally the Agency's preferred enforcement approach for
CERCLA non-NPL sites that are NPL-caliber.
S Number of Sites with SAA agreements: 70 since inception; 5 over past five years
•/ Can Include Proposed NPL Sites (Y/N): Yes
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¦S Applicable Law Governing Cleanup: CERCLA
•S NCP-Equivalent Cleanup Required (Y/N): Yes
•S Initiation Requirements: Draft HRS package exists; Willing and capable PRPs willing to sign
agreement with EPA to perform the investigation or cleanup; remedial action anticipated
•S Level of Superfund Oversight: Same as if the site is on the NPL
•S Frequency of Progress Reporting by Superfund: Same as if the site is on the NPL
•S Closeout Documents/Procedures Required by Superfund: Same as if the site is on the NPL
•S Superfund Progress Profile Required (Y/N): Yes
S Included in National SF Cleanup Metrics (HEUC, GMUC, SWRAU, etc.) (Y/N): Yes
•S Additional Information: Updated Superfund Response and Settlement Approach for Sites Using
2012; The Superfund Alternative Approach webpage contains several documents and is
available at https://www.epa.gov/enforcement/superfund-alternative-approach.
Approach: Deferral to Nuclear Regulatory Commission
Since September 8, 1983, the EPA has generally deferred addition to the NPL those sites that are subject
to NRC's licensing authority, in recognition that NRC's actions are believed to be consistent with the
CERCLA requirement to protect human health and the environment. However, as the EPA indicated in
the Federal Register notice announcing the policy of CERCLA deferral to NRC, if EPA "determines
that sites which it has not listed as a matter of policy are not being properly responded to, the Agency
will consider listing those sites on the NPL" (see 48 Fed. Reg. 40658). In a memorandum of
understanding (MOU) signed in 2002 by the EPA and the NRC, the EPA reaffirmed its previous 1983
NRC deferral policy.
The EPA expects that EPA's CERCLA involvement in the decommissioning of NRC licensed sites will
continue to occur infrequently because the EPA expects that the vast majority of facilities
decommissioned under NRC authority will be decommissioned in a manner that is fully protective of
human health and the environment. In the 2002 MOU, EPA agreed to defer to NRC decision-making
without the need for EPA consultation except in certain limited circumstances as specified in paragraphs
V.C.2 and V.C.3 of the MOU.
•S Number of Sites Deferred to NRC: 7 since inception; 0 over past 5 years
•S Can Include Proposed NPL Sites (Y/N): Yes
•S Applicable Law Governing Cleanup: Atomic Energy Act (AEA)
•S NCP-Equivalent Cleanup Required (Y/N): Yes
•S Initiation Requirements: Determination site is subject to NRC's licensing authority
•S Level of Superfund Oversight: None
•S Frequency of Progress Reporting by Superfund: None
•S Closeout Documents/Procedures Required by Superfund: No
•S Superfund Progress Profile Required (Y/N): No
S Included in National SF Cleanup Metrics (HEUC, GMUC, SWRAU, etc.) (Y/N): No
•S Additional Information: Amendment to the NCP/NPL (section: Releases of Radioactive
Materials), FR 48 40601 September 8. 1983; Memorandum Of Understanding (MO • i h tween
; the U.S. Nuclear Regulatory Commission regarding Consultation and Finality
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on Decommissioning; and Decontamination of Contaminated Sites, OSWERNo. 9295.8-06a,
October 9, 2002; Distribution of Memorandum of Understanding between EPA and the Nuclear
Regulatory Commission, OSWERNO. 9295.8-06a, October 9, 2002.
Table 1 presents a comparative summary of current approaches for addressing non-NPL cleanups at
NPL-caliber sites. The table presents key differences among these approaches to assist decision-makers
considering non-NPL approaches at NPL-caliber sites. Generally, the differences among the approaches
are primarily due to the scope and level of EPA involvement, equivalency with CERCLA cleanup
requirements, and whether the cleanup lead is a federal or state/tribal government agency or a private
party.
Table 1: Summary of Current Non-NPL Approaches for Addressing N PL-Caliber Sites
RCRA
Corrective
Action
Other Cleanup
Activity
Formal State
Deferral
Superfund
Alternative
Approach
Nuclear
Regulatory
Commission
# Sites
Deferred/Referred
to Approach
2,200 (7 over
past 5 years)
1,800(150-200
over past 5
years)
42 (5 over past 5
years)
70 (5 in last 5
years)
7 (none over past
5 years)
Include sites
proposed to NPL
Yes
No
Yes
Yes
Yes
Applicable law(s)
RCRA
Generally, state,
tribal, local or
other federal
environmental
laws
State or tribal
environmental
laws
CERCLA
AEA
NCP-equivalent
cleanup required
Yes
No
Yes
Yes
Yes
Initiation
Requirements
Written
acceptance by
RCRA
Documentation
that lead
regulator is
pursuing a non-
NPL cleanup
Agreement
between EPA and
State or tribe
Score > 28.5;
remedial action
anticipated;
capable PRP
willing to sign
AOC or CD with
EPA
Determination site
is subject to
NRC's licensing
authority
Level of
Superfund
Oversight
None
Requires bi-
annual EPA
check-in
Some flexibility;
requires annual
EPA check-in
Same as for NPL
None
Frequency of
Progress
Reporting by
Superfund
None
No detailed site
progress
reporting by HQ
No detailed site
progress reporting
by HQ
Same as for NPL
None
Closeout
Documents or
Procedures
Required by
Superfund
None
Close-out report
or equivalent
document
submitted by
the lead-
regulator to
Superfund or
Close-out report
or equivalent
submitted by
state/tribe to
Superfund.
state/tribe notifies
Same as for NPL
None
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RCRA
Corrective
Action
Other Cleanup
Activity
Formal State
Deferral
Superfund
Alternative
Approach
Nuclear
Regulatory
Commission
other
confirmation
obtained by
Superfund
program
affected
community
Superfund
Progress Profile
required
No
No
No
Yes
No
Included in
National
Superfund
Cleanup Metrics
No
No
No
Yes
No
KEY ELEMENTS, LESSONS LEARNED AND BEST PRACTICES
Key Elements
To identify requirements needed to implement federal and non-federal approaches that are appropriate
for investigating and cleaning-up NPL-caliber sites, the workgroup focused on approaches separate from
those that exist at the state or tribal level that originate by federal statute (e.g., RCRA) and are managed
by a state or tribe through a delegated program. However, general practices and specific considerations
identified by the workgroup may also be applicable to those situations, particularly where a state or tribe
is undertaking the work pursuant to those authorities or their state equivalents.
EPA regional offices and the Association of State and Territorial Solid Waste Management Officials
(ASTSWMO) were asked to provide examples of NPL-caliber sites addressed through an alternative
authority. The workgroup evaluated the examples provided along with the SP1.V1 and other relevant
guidance documents for insights on success and limitations. These examples were further used to
identify the key elements in Table 2 for sites needing an NCP-equivalent cleanup, and recommendations
and best management practices for identifying and coordinating appropriate cleanup of NPL-caliber sites
by states/tribes.
State and tribal authorities used to conduct cleanup3 at NPL-caliber sites varies and can include federally
delegated state programs, state CERCLA equivalent programs, solid waste programs, or other
remediation programs.
The following existing documents provide an overview of, information about, or data regarding state
cleanup of NPL-caliber sites include:
• 2019 Superfund Program Implementation Manual (this document includes definitions and EPA
program implementation requirements particularly definitions and tracking for Other Cleanup
8 "Cleanup" for the purposes of this document includes the full range of remedial decisions or actions that may be taken at a
site, e.g., no further action institutional controls, and/or other remedial actions.
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Activity) available at https://www.epa.gov/superfund/superfund-program-implementation-
manual
• 1995 Guidance on Deferral of NPL Listing Determinations While States Oversee Response
Actions available at https://semspub.epa.gov/work/HQ/123675.pdf (this document outlines the
general process and requirements where a Deferral of NPL site is contemplated and would be
utilized for a State to conduct cleanup activity).
• 2012 Superfund Site Assessment Program: Benefits Beyond NPL Listing (This is an
ASTSWMO publication that provides data and information where additional cleanup activity has
occurred at sites where a CERCLA remedial site assessment has occurred).
Table 2: Key Elements when Considering the Use of State/Tribal Authority at an NPL-Caliber
Site Needing to achieve an NCP-Equivalent Cleanup
Element
Considerations
Funding
• If potentially responsible party (PRP) is conducting cleanup, does state/tribe
have the means to ensure cleanup funding is consistently and readily provided
by PRP to conduct cleanup?
• If no viable PRP, does the state/tribe have sufficient cleanup funds to
complete the cleanup?
• Is there a third-party (including a potential developer) that has sufficient
funding to conduct cleanup?
Regulatory
Oversight
• Is the state/tribal authority a remediation authority that includes elements of
site cleanup?
• Does the state/tribe have technical resources through staff or contractors to
review cleanup work?
• What enforcement authority does the state/tribe have to compel cleanup
and/or identify and pursue PRPs for cleanup activities if necessary?
Technical
(Remedial
Feasibility/
Implementation/
End Points)
• Does the state/tribal authority or program require or include evaluation of all
potential exposure pathways?
• Does the state/tribal authority or program require or include cleanup to
equivalent or appropriately protective endpoints for all identified pathways?
• Does the state/tribal authority or program require or include documentation of
cleanup conducted including evaluation or requirements addressing all
pathways?
• Does the state/tribal authority or program require or include a mechanism to
review cleanup after completion to ensure remedy remains protective?
Public Participation
• Does the state/tribal authority or program require or include public review and
comment at appropriate stages of the cleanup, particularly the cleanup activity
selected or undertaken?
• Does the state/tribal authority or program require or include a means for the
public to access or review cleanup related documents?
EPA/State
Coordination
• Have EPA and the state/tribe identified (where required, requested, or
appropriate) a process for EPA review and comment on technical documents
and decisions?
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Element
Considerations
• Have EPA and the state/tribe identified a process for regular communication
and updates regarding cleanup activity including information, as necessary,
for EPA tracking of the site?
Seven EPA Regions and ASTSWMO responded to the request for examples of using non-NPL
approaches providing fourteen site-specific examples. Some EPA Regions also provided information
regarding the process used to determine if use of an alternative authority should be pursued. The
responses are summarized below.
Region/State NPL-Caliber Site Alternate Authority Determination Processes
Feedback from EPA Regions regarding the alternative authority determination process offered the
following information:
• One region indicated that it considers state interest in addressing hazardous substance releases at
a site that poses a threat to human health and the environment and has an HRS score high enough
to support proposing the site for NPL addition, if the state interest is expressed early in the pre-
remedial process. If the EPA Region and state agree to use an alternate state approach, the EPA
Region does not engage further as long as the state continues to make progress addressing the
releases and report annually on the progress.
• One region reported that if a state expresses interest in addressing sites that either have been
proposed to the NPL or have completed an HRS listing package, the region expects the state to
provide a written commitment specifying how they will achieve an NPL-caliber cleanup. This
agreement has taken the form of a MOU between the EPA Region and the state.
• One region holds quarterly calls or meetings with each state program to discuss a broad range of
issues including sites that may be appropriate for NPL listing. In addition, this Region holds
semi-annual state program directors' meetings bringing together the program directors from all
the Region's states. The meetings provide another avenue to discuss sites in the site assessment
queue that may be eligible for addition to the NPL. The EPA Region also maintains open lines of
communication with all its states, so that a state director may call the regional director to discuss
a site and the best path forward for addressing cleanup.
• One region noted that sometimes disagreements regarding a path forward for a site are internal to
a state organization, with some parts supporting listing and other parts not supporting it.
Regional Concerns Raised About Using Alternative Approaches In lieu of Adding a Site to the
NPL
• Significant delays can occur if a PRP defaults on its remedial work commitments under a non-
SAA, non-NPL approach, including time delays if the site needs to be placed on the NPL to
achieve cleanup. Financial assurances could mitigate these delays to some degree.
• There is a perception that alternative approaches may avoid a stigma some believe is associated
with the NPL. Without conceding that NPL listing creates such a stigma, communities may
benefit at those sites where a PRP is willing to do the cleanup using a non-NPL route.
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• Using a hybrid or combination of non-NPL approaches at different areas within a single site
creates complexity and introduces the potential for significant delays in site cleanup should one
of the approaches fail.
• Untested approaches can lead to extraordinary delays. One EPA Region described a site where
circumstances caused the EPA to enter into an agreement with terms that were untested. After
fifteen years of working under this agreement, major milestones have not been accomplished.
• Multiple property owners, federal agencies, states and/or tribes adds complexities to any site and
introduces additional risk to achieving a non-NPL cleanup in a timely fashion.
• One EPA Region noted that the decision to use an alternative authority does not have the formal
public comment process that is required to place the site on the NPL.
• Risk assessments performed under CERCLA removal authorities may prove insufficient if the
site ultimately needs to be addressed under remedial authorities. One EPA Region mitigated this
risk during a Non-Time Critical Removal Action at an NPL-caliber site by requiring the PRP to
compete the risk assessment as if the site were being addressed through remedial authorities.
• Remedial work under non-NPL approaches other than the SAA do not receive resources in the
pipeline allocation model used to distribute resources among regions for Superfund work.
• Incorrectly interpreting the national program direction, one region has de-emphasized using the
SAA in recent years.
• Potential delays and failure of the non-NPL approach can occur when the site lacks a motivated
and cooperative PRP or when relevant federal, state or tribal stakeholders are not in full
agreement with all aspects of the non-NPL approach.
• Lack of state support for using NPL listing as a backup approach to a non-NPL approach can
serve as a disincentive for PRPs to meet cleanup expectations.
• Sites with relatively high cleanup costs can decrease the motivation of PRPs to perform cleanup
under any approach.
Regional/State Identified Lessons Learned
Feedback from the seven EPA Regions and ASTSWMO yielded the following lessons learned:
• Critical to the success of any non-NPL approach is the involvement of a very cooperative PRP.
• Redevelopment potential and a relatively limited scope of remediation needed (e.g., soil
remediation only), greatly increase the likelihood that a cleanup can be achieved without addition
to the NPL.
• In some situations, removal agreements in conjunction with significant investment by an
interested developer can be successful and may save Superfund resources. The success of this
scenario, however, may be dependent on a thoroughly characterized site.
• Strategic use of removal authority at non-NPL sites can expedite cleanup in some circumstances.
• At one large site, an EPA Region described leveraging state resources for cleanup, with the PRP
paying the state's costs; using removal authority; and using RCRA authority. The Region
believes the process was likely slower than if the site had been added to the NPL and the EPA
had been the lead throughout the remedy selection process.
• Best management practices should include an evaluation of alternative mechanisms to reach and
implement a remedy and to carefully balance the incentives and disincentives of each approach
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against the EPA's priorities (e.g., timeliness of cleanup, successfully expediting the cleanup,
potential compromises to the remedy, etc.).
• Pooling resources across programs and states can maximize benefits to affected communities.
• The success of using non-NPL approaches is dependent upon a commitment by the responsible
parties to fully address the contamination at the site in cooperation with the state/tribe, the EPA,
and the affected communities. It is critical that clear expectations on cleanup are established
early and that the administrative path is clearly defined to minimize the need for costly and time-
consuming revisions.
• Using non-NPL approaches can get cleanup work going in situations that pose immediate threats
and where listing sites on the NPL may be time-consuming.
• Some states have specific funds (e.g., dry cleaner funds or an environmental stewardship fund)
that allows the states to address NPL-caliber sites, so they don't need to be listed on NPL. Where
such funds exist, one Region expressed a preference for relying on these state mechanisms rather
than adding the site to the NPL.
Table 3 presents various factors associated with the site examples/case studies evaluated by the
workgroup.
Table 3: Overview of Site Factors Identified in Example Sites
Example NPL-Alternative Site A BCDEFGHI JKLM
NPL proposed/not final
X
X
X
X
X
Removal Action
X
X
X
X
X
EE/CA NTCRA
X
X
X
X
X
Administrative Order on Consent
X
X
X
X
X
X
X
Non-CERCLA Consent Decree
X
X
CERCLA Consent Decree
X
X
CERCLA Unilateral Order
X
State Order
X
X
Redevelopment Interest / BFPP
X
X
X
X
Mixed Funding
X
State Authority
X
X
X
X
X
X
RCRA
X
X
Superfund Alternative Approach
X
X
Complex Site
X
X
X
X
X
X
X
Cooperative PRPs
X
X
X
X
X
X
X
Accelerated Cleanup
X
X
X
X
The workgroup noted that Site circumstances in the examples provided varied widely. This variability is
common at Superfund sites, making it difficult to identify universal one-size fits all approach. The
examples provided showed that: 1) in certain situations protective cleanups can be achieved using an
alternate approach; and 2) that untested approaches can lead to delays. Thus, when determining if an
alternative approach to adding a site to the NPL is likely to result in a timely and protective cleanup,
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many factors may need to be assessed, including, e.g., site complexity, cooperation of the PRPs, remedy
costs, and the ability of the alternative approach to efficiently and effectively address the situation.
Best Practices
The following best practices are offered when using appropriate state or tribal authorities to clean up
NPL-caliber sites:
• Implement the elements identified in the 2019 SPIM to ensure that consistent tracking of Other
Cleanup Activity undertaken by states/tribes is occurring. This includes the EPA Regions and
states identifying regular discussion points to discuss and assess the status of sites being
addressed by a state or tribal cleanup authority.
• Identify a regular mechanism to discuss and identify sites that may be addressed through non-
NPL approaches early in the cleanup process.
• Document the mechanism for identifying sites to be addressed through state or tribal authorities
in a memorandum of agreement (MOA) with a state/tribe, e.g., a Superfund memorandum of
agreement (SMOA).
• Use work share planning meetings between the EPA Regions and states/tribes to discuss site
disposition.
• When an NCP-equivalent cleanup is needed, consider if a state/tribe may be able to use their
response and enforcement authorities to ensure that remediation occurs in a manner that is
consistent with CERCLA and the NCP.
• Where states/tribes are interested in assuming the oversight and enforcement of remaining
response actions at an NPL-caliber site at which the EPA has already taken enforcement action,
consult the model Memorandum of Understanding for use between the EPA and the state/tribe
that was developed under Superfund Task Force Recommendation 19 to help determine if
transferring the site to a state or tribal program is appropriate.
• Refer to and consider the Key Elements in Table 2 of this document in discussions and
implementation of a state or tribal authority at sites needing an NCP-equivalent cleanup. The
matrix may help ensure a mutual understanding regarding the appropriate uses of a specific state
or tribal authority at these sites.
• Routine evaluation of non-NPL approaches should carefully balance the benefits and drawbacks
of each approach with respect to the EPA's priorities (e.g., expediting cleanup, site reuse,
engaging partners and stakeholders, etc.).
• The EPA Regions, states and tribes should consider if adequate internal processes are in place to
determine the best path forward for a site to achieve a protective cleanup.
SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS
• The success of using non-NPL approaches is strongly dependent upon a reliable and sustainable
commitment by the responsible parties to fully address the contamination at the site in
cooperation with the state/tribe, the EPA, and the affected communities.
• There are established options for addressing NPL-caliber sites in lieu of adding the site to the
NPL. The EPA should continue to assess all available options when considering potential
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responses at NPL-caliber sites and continue to consult with other federal, state and tribal
remedial programs on what cleanup approach to use.
• Implement the best practices outlined above.
• Where NPL-caliber sites are addressed using the Other Cleanup Activity and formal state
deferral non-NPL approaches, the EPA generally performs a monitoring role by checking in with
the authority implementing the response on the status of the cleanup work. The EPA should
consider developing a list of standard parameters to assess the cleanup status and help determine
if further federal Superfund involvement should be re-considered.
• Many factors must be assessed in determining if an alternative to listing a site on the NPL is
likely to result in a timely and protective remedy, including site complexity, cooperation and
posture of the PRPs, and remedy cost.
• Establishing expectations on applicable cleanup requirements and clearly defining the
administrative path will minimize the need for costly revisions to the cleanup plan.
REFERENCES/ADDITIONAL INFORMATION
Guidance on Deferral of NPL Listing Determinations While States Oversee Response Actions, OSWER
Directive No. 9375.6-11, Office of Solid Waste and Emergency Response, EPA/540/F-95/0002, (May 3,
1995), available at https://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=2000L26C.TXT.
Additional Guidance on "Worst Sites" and "NPL Caliber Sites" to Assist in SACM Implementation,
OSWER Directive No. 9320.2-07, Office of Solid Waste and Emergency Response (Oct. 12, 1993)
available at https://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=9100UH29.TXT.
Assessing Sites Under SACM-Interim Guidance, OSWER Directive No. 9203.1-051, Vol. 1 No. 4,
Office of Solid Waste and Emergency Response (Dec. 12, 1992)
Guidance for Setting Priorities for NPL Candidate Sites, OSWER Directive No. 9203.1-6, Office of
Solid Waste and Emergency Response (Oct. 28, 1992).
Previous Evaluations of Alternate Approaches:
GAP Report "Superfund: EPA. Should Take Steps to Improve Its Management of Alternatives to
Placing Sites on the National Priorities List U.S. General Accounting t Hhu ^^M 252) (Apr. 201 )
available at https://www.gao.gov/assets/660/653646.pdf.
Superfund Site Assessment Program: Benefits Beyond NPL Listing Phase II, ASTSWMO, CERCLA
and Brownfields Research Center, Site Evaluation Focus Group, (Mar. 2012) available at
http://astswmo.org/files/policies/CERCLA and Uiownfields/2012.03.19-Site Eval-Phase 11 Report-
.
Analysis of Superfund Site Assessment Program Cooperative Agreements with States: Benefits of
Effective State and Federal Partnerships, ASTSWMO, CERCLA and Brownfields Research Center, Site
Evaluation Focus Group, (May 2014) available at
http://astswmo.org/files/policies/CERCLA. a jwnfields/ASTSWMO Site%20Evaluation%20Draft
%20Final%20-%20with%20Updated.%20footers%2008%2020%2014%20.pdf.
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