READ THIS FIRST:
Using the Electronic NCP and the NCP Index
The National Oil and Hazardous Substances Pollution Contingency Plan
(NCP) is now available in WordPerfect 5.1. This guidance file, "READ THIS
FIRST," is designed to help users easily access the NCP, as well as its
accompanying Preambles and Index. Also, this file outlines how the NCP files
are organized and explains how to move around in the text effectively and to
locate specific page references.
Errors:
While an effort has been made to verify the accuracy of the NCP files,
the final printed Federal Register copies of the NCP should be relied upon in
case of any uncertainty.
Please report errors to Rhea Cohen, Office of Emergency and Remedial
Response, Office of Program Management, Policy and Analysis Staff (OS-240),
telephone (202)260-2200.
File Structure:
Five files comprise the complete computerized NCP document. Three of
these files represent the substantive text of the NCP, while the remaining two
comprise the NCP Index, which include a Table of Contents and a Key Terms
Index. Although all of the files are protected against editing, they may
still be searched for words or phrases using the F2 key, or marked for blocks
(F4 key) to be printed (F7 key). To select a file, move the cursor to
highlight the name of the file and hit the "enter" key. The five available
files are:
! TABLE.CON: This file consists of three Tables of Contents.
Section A is the TOC for the NCP proposed rule preamble,
Section B is for the NCP final rule preamble, and Section C
is for the NCP final rule. These tables provide specific
Federal Register page references to the subpart and section
discussions that are included in the three sources.
! PROPRE.AM: This file contains the preamble to the proposed
NCP published at 53 FR 51394 on December 21, 1988 (Federal
Register page numbers 51394 through 51474).
! PREAMBL.E: This file contains the preamble to the NCP final
rule published at 55 FR 8666 on March 8, 1990 (Federal
Register page numbers 8666 through 8812) .
! FINALRUL.E: This file delineates the NCP final rule, also
published at 55 FR 8666 on March 8, 1990 (Federal Register
page numbers 8813 through 8865).
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NCPINDX: This file holds the NCP Key Terms Index. The
index was developed with experience and knowledge gained
over the past several years through the NCP revision
project, and seeks to be as comprehensive as possible. The
primary references included are to the NCP final rule and
the preamble to the final rule, as well as selected
references to the preamble to the proposed NCP. These
latter references are more general and highlight only
certain sections of the preamble to the proposed rule and
are not intended to be as comprehensive as those for the
final rule and preamble. The references contained in the
Key Terms Index appear in three different ways, in the
following order, depending on the source referenced:
References to the preamble of the final
NCP appear in regular, non-bold type. For
example, pages 8769-8770 always appear in
regular type.
References to the final NCP appear in bold
type. For example, pages 8830-8831 always
appear in bold.
References to the preamble of the proposed
NCP appear with full Federal Register
references. For example, 53 FR 51469
refers to the preamble to the proposed
NCP.
The Index makes extensive use of the subheadings where
appropriate in order to provide as precise and detailed
references as possible. It also makes free use of cross-
references, which permit the user to search for a reference
under several relevant main entries. In all cases,
subheadings appear in italics to assist the reader when
searching for a cross-referenced term. If the cross-
reference includes italics, it refers to a subheading under
another main entry.
Page Reference Search:
To search for a specific page reference in any of the sections of the
NCP, execute the following steps: retrieve the file which corresponds to the
section in which you are interested, hit the search key (F2), enter the four-
or five-digit Federa^^e^ister page number, and hit the search key again.
Note: In order to conduct a search of the entire document, you must initiate
the sequence of commands from the beginning of the file. Following execution
of the search, you will automatically be shifted to the WordPerfect text which
corresponds to the top of that Federa^^e^ister page.
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start 55 FR 8666
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
National Oil and Hazardous Substances Pollution Contingency Plan
AGENCY: Environmental Protection Agency.
ACTION: Final Rule.
SUMMARY: The Environmental Protection Agency (EPA) is today promulgating
revisions to the National Oil and Hazardous Substances Pollution Contingency
Plan (NCP). The Superfund Amendments and Reauthorization Act of 1986 (SARA)
amends existing provisions of and adds major new authorities to the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(CERCLA). Furthermore, SARA mandates that the NCP be revised to reflect these
amendments. Today's revisions to the NCP are intended to implement regulatory
changes necessitated by SARA, as well as to clarify existing NCP language and
to reorganize the NCP to coincide more accurately with the sequence of
response actions.
EFFECTIVE DATE: The final rule is effective 30 days after the date of this
FEDERAL REGISTER notice. CERCLA section 305 provides for a legislative veto
of regulations promulgated under CERCLA. Although INS v. Chadha, 462 U.S.
919, 103 S.Ct. 2764 (1983), cast the validity of the legislative veto into
question, EPA has transmitted a copy of this regulation to the Secretary of
the Senate and the Clerk of the House of Representatives. If any action by
Congress calls the effective date of this regulation into question, EPA will
publish notice of clarification in the FEDERAL REGISTER. The incorporation by
reference of certain publications listed in the regulation is approved by the
Director of the Federal Register as of April 9, 1990.
ADDRESS: The official record for this rulemaking is located in the Superfund
Docket, located in Room 2427 at the U.S. Environmental Protection Agency, 401
M Street, S.W., Washington, DC 20460, telephone number 1-202-382-3046. The
record is available for inspection, by appointment only, between the hours of
9:00 a.m. and 4:00 p.m., Monday through Friday, excluding legal holidays. As
provided in 40 CFR Part 2, a reasonable fee may be charged for copying
services.
FOR FURTHER INFORMATION CONTACT: Tod Gold, Policy and Analysis Staff, Office
of Emergency and Remedial Response (OS-240), U.S. Environmental Protection
Agency, 401 M Street, S.W., Washington, D.C. 20460, at 1-202-382-2182, or the
RCRA/Superfund Hotline at 1-800-424-9346 (in Washington, DC, at
1-202-382-3000) .
SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed in the
following outline:
I. Introduction
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II. Response to Comments on Each Subpart (a detailed index is set forth at the
beginning of this section)
III. Summary of Supporting Analyses
I. Introduction
Pursuant to section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, Pub. L. No. 96-510 (CERCLA or
Superfund or the Act), as amended by section 105 of the Superfund Amendments
and Reauthorization Act of 1986, Pub. L. No. 99-499, and Executive Order
(E.O.) No. 12580 (52 FR 2923, January 29, 1987), the Environmental Protection
Agency (EPA), in consultation with the National Response Team, is today
promulgating revisions to the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP), 40 CFR Part 300. Today's final rule is based on
revisions proposed on December 21, 1988 at 53 FR 51394; approximately 160
commenters submitted specific comments on the FEDERAL REGISTER proposal, in
writing as well as in testimony at four public hearings held in January 1989.
Revisions to the NCP were last promulgated on November 20, 1985 (50 FR
47912) .
For the reader's convenience and because the section numbers are being
changed, EPA is reprinting the entire NCP, except for Appendix A (Uncontrolled
Hazardous Waste Site Ranking System: A Users Manual), which is the subject of
a separate rulemaking (see 53 FR 51962, December 23, 1988); and Appendix B
(National Priorities List), which undergoes frequent updates by rulemakings
(see, e.g., 54 FR 29820, July 14, 1989); and Appendix C (Revised Standard
Dispersant Effectiveness and Toxicity Tests), for which only minor technical
corrections were proposed. Also the "Procedures for Planning and Implementing
Off-Site Response Actions," 40 CFR ' 300.440, is the subject of a separate
rulemaking and is not included in this notice. See proposed rule, 53 FR 48218
(November 29, 1988). Those sections of the NCP that are merely being repeated
in this rule for public convenience, but for which no changes were proposed or
comment solicited, are not the subject of this rulemaking and are not subject
to judicial review.
All existing subparts of the NCP have been revised and several new
subparts have been added. Furthermore, because the NCP has been reorganized,
many of the existing subparts have been redesignated with a different letter.
The reorganization of NCP subparts is as follows:
Subpart A - Introduction
Subpart B - Responsibility and Organization for
Response
Subpart C - Planning and Preparedness
Subpart D - Operational Response Phases for Oil
Removal
Subpart E - Hazardous Substance Response
Subpart F - State Involvement in Hazardous Substance
Response
Subpart G - Trustees for Natural Resources
Subpart H - Participation by Other Persons
Subpart I - Administrative Record for Selection of
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Response Action
Subpart J - Use of Dispersants and Other Chemicals
Subpart K - Federal Facilities [Reserved]
Today's revisions to the NCP encompass a broad and comprehensive
rulemaking to revise as well as restructure the NCP. The primary purpose of
today's rule is to incorporate changes mandated by the Superfund Amendments
and Reauthorization Act of 1986 (SARA) and to set forth EPA's approach for
implementing SARA. SARA extensively revised existing provisions of and added
new authorities to CERCLA. These changes to CERCLA necessitated revision of
the NCP. In addition, EPA is making a number of changes to the NCP based on
EPA's experience in managing the Superfund program.
The preamble to the December 21, 1988 proposed revisions to the NCP
provided detailed explanations of changes to the existing (1985) NCP. The
preamble to today's rule consists mainly of responses to comments received on
the proposed revisions. Therefore, both preambles should be reviewed when
issues arise on the meaning or intent of today's rule. Unless directly
contradicted or superseded by this preamble or rule, the preamble to the
proposed rule reflects EPA's intent in promulgating today's revisions to the
NCP.
The preamble to today's rule responds to the major comments received on
the proposed revisions, except as noted in the following paragraphs. In
general, a separate discussion is provided for each proposed section on which
comments were received; the discussions are organized as follows: a
description of
start 55 FR 8667
the "existing (1985) rule" and/or "proposed rule" is provided to aid the
reader in understanding today's revisions; a summary of the comments received
on each proposed section, and EPA's response to the comments, is then set out
under the heading "response to comments;" and revisions made to proposed rule
language are then set out under the heading "final rule." Revisions to the
proposed rule that are simply editorial or that do not reflect substantive
changes may not be described under the heading "final rule." In addition,
citations have been updated or corrected, where appropriate.
More detailed explanations to comments received and responses to minor
comments are set out in the "Support Document to the NCP," which is available
to the public in the Superfund Docket, located in Room 2427 at the U.S.
Environmental Protection Agency, 401 M Street, S.W., Washington, DC 20460.
A number of commenters on the proposal made statements relating to
federal facilities, including suggestions for how Subpart K of the NCP should
address their concerns. Issues raised by commenters included the
applicability of the NCP at non-NPL federal facilities, state involvement at
federal facilities, the role of federal agencies as lead agency at their
facilities, and the applicability of the removal time and dollar limits to
removal actions at federal facilities. These are important issues that EPA is
considering in the development of the proposed Subpart K, which is the subject
of a separate rulemaking. EPA will address these comments as well as
additional comments received on the proposed Subpart K in the preamble and
support document to the final rule on Subpart K.
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Subpart K will provide a roadmap to those requirements in the NCP that
federal agencies must follow when conducting CERCLA response actions where
either the release is on, or the sole source of the release is from, any
facility or vessel under their jurisdiction, custody, or control, including
vessels bare-boat chartered or operated.
The preamble to the proposed NCP also announced that EPA was considering
an expansion of the existing policy of deferring sites from inclusion on the
National Priorities List (such as sites subject to the corrective action
authorities of RCRA) to include deferral to other federal or state
authorities, or CERCLA enforcement actions. A number of comments were
received on this suggested policy expansion. EPA is still evaluating the
issues raised by commenters and thus will not decide this policy issue at this
time. Current policies with regard to what sites are appropriate for
inclusion on the National Priorities List will remain in effect until further
notice. Should EPA decide in the future to consider establishing an expansion
to deferral policies, EPA will respond at that time to the comments received.
As part of a consent decree filed June 14, 1989 in Natural Resources
Defense Council, et al., v. Reilly, C.A. No. 88-3199 (D.D.C.), EPA agreed to
deliver to the FEDERAL REGISTER by February 5, 1990, for publication, final
revisions to the NCP proposed December 21, 1988, reflecting the requirements
of CERCLA section 105(b), as amended. With the publication of this final
rule, the requirements of that consent decree are now fulfilled.
The regulation and the rest of the preamble use the term "CERCLA" to
mean CERCLA as amended by SARA; the term "SARA" is used only to refer to Title
III, which is an Act separate from CERCLA, and to other parts of SARA that did
not amend CERCLA. The term "SARA" is used in this overview portion of the
preamble, however, to highlight the changes to CERCLA.
A. Statutory overview
The following discussion summarizes the CERCLA legislative framework,
with particular focus on the major revisions to CERCLA mandated by SARA as
well as the provisions of E.O. No. 12580, which delegates certain functions
vested in the President by CERCLA to EPA and other federal agencies. In
addition, this discussion references the specific preamble sections that
detail how these changes to CERCLA are reflected in today's rule.
1. Reporting and investigation. CERCLA section 103(a) requires that a
release into the environment of a hazardous substance in an amount equal to or
greater than its "reportable quantity" (established pursuant to section 102 of
CERCLA) must be reported to the National Response Center. Title III of SARA
establishes a new, separate program that requires releases of hazardous
substances, as well as other "extremely hazardous substances," to be reported
to state and local emergency planning officials. The preamble discussion of
Subpart C summarizes Title III reporting requirements.
CERCLA section 104 provides the federal government with authority to
investigate releases. SARA amends CERCLA section 104 to clarify EPA's
investigatory and access authorities, explicitly empowering EPA to compel the
release of information and to enter property for the purpose of undertaking
response activities. Amended section 104(e) also provides federal courts with
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explicit authority to enjoin property owners from interfering with the conduct
of response actions. SARA further amends CERCLA section 104 to specifically
authorize EPA to allow potentially responsible parties (PRPs), under certain
conditions, to conduct investigations. The preamble discussion of Subpart E
details how today's rule reflects these revisions to CERCLA.
2. Response actions. CERCLA section 104 provides broad authority for a
federal program to respond to releases of hazardous substances and pollutants
or contaminants. There are two major types of response actions: the first is
"removal action," the second is "remedial action." CERCLA section 104 is
amended by SARA to increase the flexibility of removal actions. This
amendment increases the dollar and time limitations on Fund-financed removal
actions from $1 million and six months to $2 million and one year, and allows
a new exemption from either limit if continuation of the removal action is
consistent with the remedial action to be taken. (The existing exemption for
emergency actions remains in effect.) SARA also amends CERCLA section 104 to
require removals to contribute to the efficient performance of a long-term
remedial action, where practicable.
In addition, SARA amends CERCLA section 104 to require that, for the
purpose of remedial actions, primary attention be given to releases posing a
threat to human health. (To this end, SARA also amends CERCLA section 104 to
expand health assessment requirements at sites and to allow individuals to
petition the Agency for Toxic Substances and Disease Registry (ATSDR) for
health assessments.)
Among the major new provisions added by SARA are CERCLA sections 121(a)
through 121(d), which supplement sections 104 and 106 by stipulating general
rules for the selection of remedial actions, providing for periodic review of
remedial actions, and describing requirements for the degree of cleanup.
These new sections codify rigorous remedial action cleanup standards by
mandating that on-site remedial actions meet applicable or relevant and
appropriate federal standards and more stringent state standards. Where the
remedial action involves transfer of hazardous substances off-site, this
transfer may only be made to facilities in compliance with the Resource
Conservation and Recovery Act (RCRA) (or other applicable federal laws) and
applicable
start 55 FR 8668
state requirements, and at which releases from land disposal units are
addressed.
Section 121 emphasizes a long-term perspective on remedies by requiring
that long-term effectiveness of remedies and permanent reduction of the threat
be considered and that the calculation of the cost-effectiveness of a remedy
include the long-term costs, including the cost of operation and maintenance.
The section mandates a preference for remedies that permanently reduce the
"volume, toxicity, or mobility" of the hazardous substance, and requires that
remedies use permanent solutions and alternative technologies or resource
recovery technologies to the maximum extent practicable. The preamble
discussion of Subpart E details how these revisions to CERCLA are reflected in
today's rule.
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3. State and public participation. New CERCLA section 121(f) requires
the "substantial and meaningful" involvement of the states in the initiation,
development, and selection of remedial actions. States are to be involved in
decisions on conducting preliminary assessments and site inspections. States
will also have a role in long-term planning for remedial sites and
negotiations with potentially responsible parties. In addition, states are to
be given reasonable opportunity to review and comment on such documents as the
remedial investigation/ feasibility study (RI/FS) and the proposed plan for
remedial action. CERCLA also provides in section 121(e)(2) that a state is
permitted to enforce any federal or state standard, requirement, criterion, or
limitation to which the remedial action is required to conform.
CERCLA section 104(d) provides that a state, political subdivision
thereof, or federally-recognized Indian tribe may apply to EPA to carry out
the action authorized in section 104. This section allows these entities to
enter into cooperative agreements with the federal government to conduct
response actions. SARA amends CERCLA section 104 to make it easier for states
to enter into such cooperative agreements. The preamble discussion concerning
Subpart F details how these revisions to CERCLA are reflected in today's rule.
SARA adds a new CERCLA section 117 to codify public involvement in the
Superfund response process. This section mandates public participation in the
selection of remedies and provides for grants allowing groups affected by a
release to obtain the technical expertise necessary to participate in
decision-making.
4. Enforcement. CERCLA sections 106 and 107 authorize EPA to take legal
action to recover from responsible parties the cost of response actions taken
by EPA or to compel them to respond to the problem themselves. SARA adds to
CERCLA a number of provisions that are intended to facilitate responsible
party conduct of response actions. CERCLA section 122, for example, provides
mechanisms by which settlements between responsible parties and EPA can be
made, and allows for "mixed funding" of response actions, with both EPA and
responsible parties contributing to response costs.
SARA creates a new CERCLA section 310, which allows for citizen suits.
Any person may commence a civil action on his/her own behalf against any
person (including the United States and any other governmental instrumentality
or agency, to the extent permitted by the eleventh amendment to the
Constitution), alleged to be in violation of any standard, regulation,
condition, requirement, or order which has become effective pursuant to CERCLA
(including any provision of an agreement under section 120 relating to federal
facilities). A civil action may also be commenced against the President or
any other officer of the United States (including the Administrator of the
Environmental Protection Agency and the Administrator of the Agency for Toxic
Substances and Disease Registry) where there is alleged a failure to perform
any act or duty under CERCLA, including an act or duty under section 120
(relating to federal facilities), which is not discretionary with the
President or such other federal officer, except for any act or duty under
section 311 (relating to research, development, and demonstration). Section
310 requires that citizen suits be brought in a United States district court.
CERCLA section 113(h)(4) provides that citizen suit challenges to response
actions may not be brought until the response action has been "taken under
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section 104 or secured under section 106."
SARA amends CERCLA section 113 to require the lead agency to establish
an administrative record upon which the selection of a response action is
based. This record must be available to the public at or near the site.
Section 113(j) provides that judicial review of any issues concerning the
adequacy of any response action is limited to the administrative record. The
preamble discussion of new Subpart I includes the introduction of
administrative record requirements into the NCP.
5. Federal facilities. Section 120(a) (2) of CERCLA provides that all
guidelines, rules, regulations, and criteria for preliminary assessments, site
investigations, National Priorities List (NPL) listing, and remedial actions
are applicable to federal facilities to the same extent as they are applicable
to other facilities. No federal agency may adopt or utilize any such
guidelines, rules, regulations, or criteria that are inconsistent with those
established by EPA under CERCLA. (For purposes of the NCP, the term "lead
agency" generally includes federal agencies that are conducting response
actions at their own facilities.)
Section 120 also defines the process that federal agencies must use in
undertaking remediation at their facilities. It requires EPA to establish a
federal agency hazardous waste compliance docket that includes a list of
federal facilities. EPA must within 18 months of enactment take steps to
assure that a preliminary assessment is conducted at each facility and, where
appropriate, evaluate these facilities within 30 months of enactment for
potential inclusion on the NPL. Sections 120(a) and (d) clarify that federal
facilities shall be evaluated for inclusion on the NPL by applying the same
listing criteria as are applied to private facilities. Requirements governing
listing are set forth in Subpart E of the NCP and in Appendix A (the Hazard
Ranking System). Federal agencies must commence the RI/FS within six months
of listing on the NPL and enter into an interagency agreement with EPA.
Section 120(e) provides for joint EPA/federal agency selection of the remedy,
or selection by EPA if EPA and the federal agency are unable to reach an
agreement. CERCLA section 120(f) makes clear that state officials shall have
an opportunity to participate in the planning and selection of the remedial
action, in accordance with section 121.
B. Summary of significant changes from proposed rule
The following is a summary of the significant changes made to the
proposed NCP in today's final rule. In Subpart A, several definitions have
been revised, including "CERCLIS," " Superfund state contract," "cooperative
agreement" and "source control action." Also, definitions for "navigable
waters," "post-removal site control" and "source control maintenance
measures" have been added.
In Subpart B, '' 300.110 and 300.115 have been changed to provide that
during activation of the National Response Team and the Regional Response
Teams, the agency that provides the OSC/RPM will be the
start 55 FR 8669
chair. In ' 300.165, a deadline of one year for submitting an OSC report has
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been promulgated, not 90 days as proposed. The National Response Center has
been added to the list of agencies described in ' 300.175. No major changes
were made in Subparts C and D.
In Subpart E, the final ' 300.430 incorporates a new goal and
expectations into the regulatory section on RI/FS and selection of remedy.
Also, the categories for the nine criteria -- threshold, balancing and
modifying -- have been removed from the detailed analysis section (i.e.,
detailed analysis does not distinguish among nine criteria) and placed in the
remedy selection section. When using criteria for balancing in selecting
remedies, emphasis is now placed on the criteria for long-term effectiveness
and permanence and for reduction of mobility, toxicity or volume. Further,
innovative technologies need only offer the potential to be comparable in
performance or implementability to demonstrated technologies to warrant
further consideration in the detailed analysis step.
Also in Subpart E, the acceptable cancer risk range in
300.430(e) (2) has been modified from the proposed 10~4 to 10~7 to 10~4 to 10~6.
_ g
The 10 point of departure remains the same. Further, the proposed NCP
stated that maximum contaminant levels (MCLs) generally would be the cleanup
level for restoration of ground or surface water where they are relevant and
appropriate under the circumstances of the release. In the final NCP, maximum
contaminant level goals (MCLGs) that are set at levels above zero generally
will be the cleanup levels where relevant and appropriate. Where MCLGs are
set at levels equal to zero, the MCL generally will be the cleanup level where
relevant and appropriate.
Other changes in Subpart E include the following: As set forth in the
preamble to section 300.435, EPA will fund operation costs for temporary or
interim measures that are intended to control or prevent the further spread of
contamination while EPA is deciding on a final remedy at a site. In
300.400(g) on applicable or relevant and appropriate requirements (ARARs), the
factors used to determine whether a requirement is "relevant and appropriate"
have been modified.
In the community relations sections, the rule is revised so that upon
timely request, the lead agency will extend the length of 30-day public
comment period on the proposed plan by a minimum of 30 additional days. The
public comment period on non-time-critical removal actions will be extended,
upon request, a minimum of 15 additional days. Also, the requirements during
remedial action/ remedial design have been revised to now include issuing a
fact sheet and providing an opportunity for a public briefing after completion
of design.
In Subpart F, in a change to the proposed rule, a Superfund Memorandum
of Agreement (SMOA) will not be a prerequisite in order for a state to
recommend a remedy to EPA or for the state to be designated the lead agency
for a non-Fund-financed response at an NPL site. Also, the proposed durations
for review by the state of documents (e.g., RI/FS, proposed plan) prepared by
EPA will now be applied as well to EPA's review of documents prepared by the
state (i.e., when the state is the lead agency).
In Subpart G and in other subparts, clarifications were made on
notification of and coordination with natural resource trustees. Also, the
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proposed requirement that the Secretary of Commerce obtain the concurrence of
other federal trustees where their jurisdictions over natural resources
overlap has been revised so that the Secretary of Commerce shall seek to
obtain such concurrence. No major changes were made in Subparts H and I but
several important clarifications are discussed in the preamble sections on
these subparts. In Subpart J, the proposed rule required concurrence of
Commerce and Interior natural resource trustees, as appropriate, on the use of
dispersants, burning agents, etc. The final rule does not require such
concurrence but encourages consultation with these natural resource trustees.
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II. Response to Comments on Each Subpart
INDEX TO RESPONSE TO COMMENTS
Section numbers used in this index and in headings in preamble sections
below refer to final rule section designations.
Subpart A
300.3 Scope
300.4 Abbreviations
300.5 Definitions
Subpart B
300.105 General organization concepts
300.110 National Response Team
300.115 Regional Response Teams
300.120 On-scene coordinators and remedial project
managers: general responsibilities
300.125 Notification and communications
300.130 Determinations to initiate response and
special conditions
300.135 Response operations
300.140 Multi-regional responses
300.145 Special teams and other assistance available
to OSCs/RPMs
300.150 Worker health and safety
300.155 Public information and community relations
300.160 Documentation and cost recovery
300.165 OSC reports
300.170 Federal agency participation
300.175 Federal agencies: additional responsibilities
and assistance
300.180 State and local participation in response
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300.185
Subpart C
300.200
300.210
300.215
Subpart D
300.300
Nongovernmental participation
General
300.205 Planning and coordination structure
Federal contingency plans
Title III local emergency response plans
Indian tribes under Title III
Phase I -- Discovery or notification
- Preliminary assessment and initiation of
300.305 Phase II
action
300.310 Phase III -- Containment, countermeasures,
cleanup and disposal
300.315 Phase IV -- Documentation and cost recovery
300.320 General pattern of response
300.330 Wildlife conservation
Subpart E
SECTION 300.400. General
300.400(d)(3);
300.400(d)(4)(i)
300.5; 300.400(e)
Designating PRPs as access representatives;
Administrative orders for entry and access
Definition of on-site
Treatability testing and on-site permit exemption
300.400(h)
PRP oversight
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SECTION 300.405. Discovery or notification
300.5 Definition of "CERCLIS"
300.405; 300.410(h) Listing sites in CERCLIS
300.415(e)
SECTIONS 300.410 and 300.420. Removal and remedial site evaluations
300.410 Removal site evaluation
300.410(c) (2); Removal site evaluation;
300.420(c) (5) Remedial site evaluation
300.410(g) Notification of natural resource trustee
300.415(b) (4); Sampling and analysis plans
300.420 (c) (4)
SECTION 300.415. Removal action
300.415(b) (5) (ii) Removal action statutory exemption
300.415 (i) Removal action compliance with other laws
300.5; State involvement in removal actions
300.415(g)&(h);
3 0 0.500(a);
300.505;
300.525(a)
SECTION 300.425. Establishing remedial priorities
300.5; 300.425 Definition of National Priorities List;
Establishing remedial priorities
300.425(d)(6)
Construction Completion category on the National
Priorities List
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Index to Response to Comments (continued)
start 55 FR 8670
SECTION 300.430. Remedial investigation/feasibility study and selection of
remedy
Introduction
300.430(a)(1) Program goal, program management principles and
expectations
300.430(a)(1) Use of institutional controls
300.430(b) Scoping
300.430(d) Remedial investigation
300.430(d) Remedial investigation -- baseline risk assessment
300.430(e) Feasibility study
300.430(e)(2) Use of risk range
300.430(e)(2) Use of point of departure
300.430(e)(9) Detailed analysis of alternatives
300.430(f) Remedy selection
300.430(f) (5) Documenting the decision
Ground-water policy
SECTION 300.435. Remedial design/remedial action, operation and maintenance.
300.435(b) (1) Environmental samples during RD/RA
300.435(d) Contractor conflict of interest
300.5; 300.435(f) Operation and maintenance
Notification prior to the out-of-state transfer of
CERCLA wastes
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Index to Response to Comments (continued)
Applicable or relevant and appropriate requirements
Introduction
3 0 0.5;
300 . 400
3 0 0.5;
300 . 400
300 . 400
300 . 400
and (g)
300.515
300 . 430
300 . 430
300 . 430
300 . 430
300 . 430
300 . 430
300 . 430
300 . 430
300 . 430
300 . 430
300 . 430
300 . 435
g) (1)
g) (2)
g) (3)
g) (4)
5)
d) (1)
Definition of "applicable"
Definition of "relevant and appropriate"
Use of other advisories, criteria or guidance to-be-
considered (TBC)
ARARs under state laws
Timely identification of state ARARs
f)(1)(ii)(C) Circumstances in which ARARs may be waived
f) (1) (ii) (C) (^) Interim measures
f) (1) (ii) (C) (2) Greater risk to health and the
environment
f) (1)
f) (1)
f) (1)
f) (1)
e) (2)
f) (5)
e) (2)
e) (2)
b) (2)
(ii) (C) (3J Technical impracticability
(ii) (C) (^) Equivalent standard of performance
(ii) (C) (5) Inconsistent application of state requirements
(ii) (C) (6J Fund-balancing
(i) (B) Use of maximum contaminant level goals for ground-
water cleanups
(iii) (A) Location of point of compliance for ground-water
cleanup standards
(i) (F) Use of alternate concentration limits (ACLs)
Use of federal water quality criteria (FWQC)
Compliance with applicable or relevant and appropriate
requirements (ARARs) during the remedial action
300 . 5
Distinction between substantive and administrative
requirements
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Index to Response to Comments (continued)
300.430(f)(1)(ii)(B)
Consideration of newly promulgated or modified
requirements
Applicability of RCRA requirements
Determination of whether a waste is a hazardous waste
When RCRA requirements are relevant and appropriate to
CERCLA actions
Examples of potential federal and state ARARs and TBCs
Community Relations
300.430(c) ;
300.430(f) (2) ,
(3) and (6)
300.415(m)(2)(ii);
300.430(f) (3) (i) (C)
300.435 (c) (2) (ii) (C)
300.435(c)
300.435 (c) (2)
Enforcement
Community relations during RI/FS and selection
of remedy
Length of public comment period
Community relations during remedial design/ remedial
action
Changes to the ROD after its adoption
Other community relations requirements
300.420; 300.430;
300.435
Superfund enforcement program strategy
Special notice and moratoria
Exemptions for federal facilities
Early notification and involvement
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Index to Response to Comments (continued)
Subpart F
300 . 5
300.500; 300.505;
300.515(h)
300.510(c)(1) and
300.510(e)
300.510(f)
300.515(a)
enforcement response
300.515(b)
300.425(e)(2);
300.515 (c) (2) ;
300.515(c) (3) ;
300.515(h)(3)
300.505 and
300.515(d)
300.515 (e) (1)
300.515(f)
300.515(g)
Definitions of "cooperative agreement" and "Superfund
state contract"
EPA/State Superfund memorandum of agreement
(SMOA); Requirements for state involvement in absence
of SMOA
State assurances -- operation and maintenance (2);
and waste capacity
State assurances -- acquisition of real property
Requirements for state involvement in remedial and
Indian tribe involvement during response
State involvement in PA/SI and NPL process;
State review of EPA-lead documents
Resolution of disputes
State involvement in selection of remedy
and (2)
Whether states should be authorized to select the
remedy at NPL sites
Enhancement of remedy
State involvement in remedial design/
remedial action
300.520(a)and(c)
State involvement in EPA-lead enforcement negotiations
Dual enforcement standards
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Index to Response to Comments (continued)
Subpart G
300.600
300.610
300.615
Subpart H
300.700(c)
300.700(c)
300.700(e)
Subpart I
3 0 0.800(a);
300.810(a)
300.800(b)
300.800(c)
300.800(d) & (e)
300.805
300.810(a)-(d)
file
300.815
300.815 and
action
300.820(b)
Designation of federal trustees
Indian tribes as trustees for natural resources under
CERCLA
Responsibilities of trustees
Consistent with the NCP
Actions under CERCLA section 107(a)
Recovery under CERCLA section 106(b)
General comments
Establishment of an administrative record;
Contents of the administrative record
Administrative record for federal facilities
Administrative record for state-lead sites
Applicability
Location of the administrative record file
Documents not included in the administrative record
Administrative record file for a remedial action
Administrative record file for a remedial 300.820(a)
action; administrative record file for a removal
Administrative record file for a removal action --
time-critical and emergency
300.825
Record requirements after decision document is signed
Subpart J
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Index to Response to Comments (continued)
300.900 - 300.920 General
Appendix C
Appendix D
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SUBPART A — INTRODUCTION
Subpart A, the preface to the NCP, contains statements of purpose,
authority, applicability and scope. It also explains abbreviations and
defines terms that are used in the NCP.
Name: Section 300.3. Scope.
Proposed rule: Proposed ' 300.3 stated that the NCP applies to federal
agencies and states and is in effect for discharges of oil into or upon the
navigable waters of the United States and adjoining shorelines, and releases
of hazardous substances into the environment, and releases of pollutants or
contaminants which may present an imminent or substantial danger to public
health or welfare.
Response to comments: A commenter suggested that ' 300.3(a) of the proposed
NCP should state that the NCP applies to private party responses as well as to
federal agency and state responses, and the NCP should define the
responsibilities of EPA and states for potentially responsible party (PRP)-
lead response actions.
EPA has revised ' 300.3(a) to eliminate the suggestion that the NCP
applies only to cleanups conducted by federal agencies and states. EPA does
not believe, however, that the roles or responsibilities of EPA or states
during PRP-lead cleanups should be defined for the purposes of ' 300.3(a).
Rather, EPA prefers that these roles and responsibilities be negotiated and
defined in site-specific enforcement agreements.
Final rule: Proposed ' 300.3(a) is revised to read: "The NCP applies to and
is in effect for:"
Name: Section 300.4. Abbreviations.
start 55 FR 8671
Final rule: Several abbreviations commonly used in the Superfund program have
been added to ' 300.4:
LEPC -- Local Emergency Planning Committee
NCP -- National Contingency Plan
RAT -- Radiological Assistance Team
SERC -- State Emergency Response Commission
Name: Section 300.5. Definitions.
Response to comments: Comments were received on several definitions. The
comments and EPA's responses regarding revised and new definitions are
included in the appropriate preamble sections, as indicated below. The
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revised or new definitions are found in the rule in ' 300.5.
1. "Applicable" and "relevant and appropriate" are discussed in the
ARARs preamble section.
2. "CERCLIS" is discussed in the preamble on ' 300.405.
3. "Cooperative agreement" and "Superfund state contract" are discussed
in the preamble to Subpart F.
4. "On-site" is discussed in the preamble on ' 300.400(e).
5. The definition for "navigable waters" used in 40 CFR 110.1 has been
included in the NCP.
6. A new definition for "post-removal site control" is discussed in the
preamble on ' 300.415, "State involvement in removal actions." References to
post-removal site control have been added to the definitions in ' 300.5 of
"remove or removal" and "remedy or remedial action."
7. "Source control action" and a new definition for "source control
maintenance measures" is discussed in the preamble on ' 300.435(f).
In addition, minor revisions were made to the following definitions:
1. Modifications to "National Priorities List" are discussed in the
preamble to ' 300.425.
2. In "operable unit," the last sentence has been deleted because it was
not appropriate for a definition.
3. In "pollutant or contaminant," the reference to Subpart E was deleted
because the definition applies to the use of the term throughout the NCP.
4. In "Superfund Memorandum of Agreement (SMOA)," the words "nonbinding"
and "may establish" are used to emphasize the voluntary nature of a SMOA (see
preamble to Subpart F). Also, a reference to "removal" has been added (see
preamble to
' 300 . 415) .
5. In "United States," the term "Pacific Island Governments" is used
instead of "Trust Territory of the Pacific Islands" (this revision is also
made in '' 300.105(d)(Figures 2 and 3) and 300.175(b)(9)(x)).
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SUBPART B — RESPONSIBILITY AND ORGANIZATION FOR RESPONSE
Subpart B describes the responsibilities of federal agencies for
response and preparedness planning and describes the organizational structure
within which response takes place. Subpart B lists the federal participants
in the response organization, their responsibilities for preparedness planning
and response, and the means by which state and local governments, Indian
tribes, and volunteers may participate in preparedness and response
activities. The term "federal agencies" is meant to include the various
departments and agencies within the Executive Branch of the federal
government. Subpart B should be distinguished from Subpart K (under
preparation separate from this final rule), which deals specifically with site
evaluation and remedial requirements for facilities under the jurisdiction of
individual federal agencies.
The proposed revisions to Subpart B did not include major substantive
changes; however, EPA did propose to combine existing Subparts B and C. The
proposed Subpart B also presented key information in a logical sequence of
response-oriented activities from preparedness planning through response
operations. The listing of the capabilities of federal agencies with respect
to preparedness planning and response was proposed to follow the sections
relating to response operations.
The following is a discussion of comments submitted and EPA's responses
on specific sections of proposed Subpart B. One change that has been made to
the proposal throughout Subpart B is, where appropriate, to delete references
to Executive Orders. Although Executive Orders are binding on agencies of the
federal government, such references are unnecessary in a rule.
Name: Section 300.105. General organization concepts.
Proposed rule: Section 300.105 directs federal agencies to undertake
specified planning and response activities and describes the general
organizational concepts of the National Response Team (NRT), the Regional
Response Teams (RRTs) and the on-scene coordinator (OSC)/remedial project
manager (RPM). The proposal provided general descriptions of member agency
responsibilities with respect to their participation in the NRT and the RRTs.
Response to comments: Many of the commenters appear to regard both the NRT
and the RRTs as response rather than planning, coordinating, and support
organizations. Another commenter wanted ' 300.105(c)(1) edited to clarify the
fact that the NRT/RRTs are policy and planning bodies that support the federal
OSC, but that they do not coordinate responses. One commenter proposed
dividing Figure 1 into two parts, one to show the NRT/RRT planning roles and
the relationship between the NRT/RRTs and the State Emergency Response
Commissions (SERCs) and the Local Emergency Planning Committees (LEPCs) and
the other to illustrate the relationship between the NRT and the RRT during
incident-specific situations. Another wanted ' 300.105(d)(1) expanded to
describe all three figures rather than only the first figure. Another noted
that corrections are needed in the references to trust territories in Figures
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2 and 3 (described in '' 300.105(d)(2) and (3)).
The above comments make it clear that some clarification of the NRT/RRT
roles in the national response system is needed. In response, text changes in
the rule now indicate the policy, planning, coordination and response support
roles of the NRT and the RRTs. Figure 1 (' 300.105(d)(1)) shows the National
Response System has been expanded to better indicate the relationships between
the parts of the organization showing NRT, RRT, OSC and RPM, special teams,
and the connections with state and local responders. Added lines indicate the
activities of the NRT and RRTs including planning and preparedness as well as
response support. Another added line indicates NRC policy guidance from the
NRT .
Experience has shown that the standing RRTs cannot provide a useful
forum for individual local governments on a continuing basis because the RRT
responsibilities extend through a multi-state region and their regular
meetings are only two to four times a year, and generally devoted to system-
wide issues for the entire region, rather than site-specific issues. Local
governments may and often do participate in such meetings where lessons
learned from a particular incident are being discussed, for example. At the
standing RRT level, then, the most effective way for local interests to be
represented is through the state member. When an incident-specific RRT action
is needed, local interests on scene are represented in accordance with the
local plans, including federal local plans, guiding the particular response.
An essential purpose of the national response system is to ensure federal
readiness to handle a response which might exceed local and state
capabilities. Appropriate
start 55 FR 8672
RRT/federal representation on multi-agency local response groups can provide a
forum for a particular community, harbor area, or other geographic locality,
comparable to what the RRT provides for the multi-state region.
One commenter wanted the NCP to include checklists of the specific tasks
to be completed by each agency during a response and to identify who in each
agency is supposed to carry out those tasks. In response EPA believes that
detailed checklists of response tasks and persons responsible for those tasks
belong in local response plans, not in the more general regional and national
plans.
One commenter said that "extremely hazardous substances" should be added
to the substances listed in ' 300.105(a)(1). Extremely hazardous substances
are defined in a separate section of the SARA statute, Title III. Although
some extremely hazardous substances are CERCLA hazardous substances, most are
not. On January 23, 1989, however, EPA proposed to designate the remaining
extremely hazardous substances as CERCLA hazardous substances (54 FR 3388).
This addition, when promulgated, will in effect mean that any reference to
"hazardous substances" will implicitly include extremely hazardous substances.
Another commenter wanted to correct awkward wording in
300.105(a)(4). The wording in ' 300.105(a)(4) has been changed as indicated
below.
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Final rule:
Proposed ' 300.105 has been revised as follows:
1. Section 300.105(a) (4) : "Make available those facilities or resources
that may be useful in a response situation, consistent with agency authorities
and capabilities."
2. Section 300.105(c) (1): "The National Response Team (NRT), responsible
for national response and preparedness planning, for coordinating regional
planning, and for providing policy guidance and support to the Regional
Response Teams. NRT membership consists of representatives from the agencies
specified in ' 300.175."
3. Section 300.105(c)(2): "Regional Response Teams (RRTs), responsible
for regional planning and preparedness activities before response actions, and
for providing advice and support to the on-scene coordinator (OSC) or remedial
project manager (RPM) when activated during a response. RRT membership
consists of designated representatives from each federal agency participating
in the NRT together with state and (as agreed upon by the states) local
government representatives."
4. Revisions to Figures 1 through 3 have been made. The revised Figure
1 clarifies the response support or planning roles of the various entities and
shows the planning relationships between the RRTs and the SERCs and LEPCs. It
also clarifies that, apart from state and local participation in the RRT, the
federal membership of the NRT and the RRTs is the same. Figures 2 and 3 have
also been revised slightly to refer to Pacific Island Governments rather than
Trust Territory of the Pacific Islands.
Name: Section 300.110. National Response Team.
Proposed rule: The proposed rule delineated the roles and responsibilities of
the NRT, specified who will act as chair and vice-chair during activation for
a response action, outlined the planning and preparedness responsibilities of
the NRT, and discussed responses in general, to oil discharges and releases of
hazardous substances, pollutants or contaminants. The organization of the
National Response Center (NRC) was placed in the notification section,
300.125.
Response to comments: A commenter suggested that more detail on the NRC
organization be included in the final rule. EPA agrees that more descriptive
language is needed but feels it is better placed in the section on
notification and communications. These changes are discussed under ' 300.125.
A commenter suggested that more information is needed on the specific
duties of the NRT in an emergency, as well as a remedial action. After
careful consideration, EPA believes that the roles and responsibilities of the
NRT are addressed satisfactorily in '' 300.110 and 300.175, and no changes are
required. The NRT is activated in only a limited number of responses, and its
activities then are usually carried out through communications between
individual NRT member agencies with their RRT members in the field as needed
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to support the OSC or RPM. Since the NCP generally describes action tied to
the response incident or site, and the NRT is generally not involved in
actions on scene, NCP discussion of possible NRT activities is not necessary.
The idea of a clearer pre-planned procedure for dealing with an event of
catastrophic or national significance has been discussed, but decisions have
not yet been made as to the form such protocols might take, when or if they
are deemed to be needed.
Another commenter suggested that, in view of the limitation on United
States Coast Guard (USCG) response authority following the 1987/1988
Department of Transportation (DOT)/EPA Instrument of Redelegation (May 27,
1988), the second sentence of ' 300.110(b) would be more instructive if the
chair of the NRT during activation was the agency providing the OSC/RPM.
EPA agrees. Who sits as chair or vice chair of the NRT will depend on
which agency provides the OSC/RPM for the particular response action. It does
not necessarily depend on "whether the discharge or release occurs in the
inland zone or coastal zone." EPA has certain responsibilities for releases
in the coastal zone. The second sentence in ' 300.110(b) has been changed as
recommended by this comment.
It was suggested that ' 300.110(h)(3) further clarify who determines
when it is necessary to activate the NRT. EPA believes that activation of the
NRT is adequately described in ' 300.110(j) and does not need to be
outlined additionally in ' 300.110(h)(3).
Final rule: The second sentence of proposed ' 300.110(b) is revised as
follows: "During activation, the chair shall be the member agency providing
the OSC/RPM."
Name: Section 300.115. Regional Response Teams.
Proposed rule: This section delineates the roles and responsibilities of the
Regional Response Team (RRT). For example, proposed ' 300.115(b)(2) addressed
the activation of the incident-specific RRT, and how the incident-specific RRT
supports the OSC/RPM when the designated OSC/RPM directs and coordinates
response efforts at the scene of the spill.
Response to comments: It was suggested that the NCP more clearly define the
role of the RRT in the remedial program and require that regional and state
remedial managers be informed of the assistance available from the RRTs. In
response, EPA believes that the description of the roles and responsibilities
of the RRT in ' 300.115 provides the necessary framework for RRTs to support
RPMs in the remedial program as they traditionally have supported OSCs. Upon
notification and request, the RRT can function the same way for all response
actions, whether they
involve oil spill or hazardous material releases, and removal or remedial
actions. Experience has not yet shown the need or usefulness of specific RRT
actions in connection with the implementation of the remedial program as
described in the NCP, while the flexibility exists for them to be involved if
a need does arise.
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start 55 FR 8673
One commenter suggested that this section should not indicate that the
RRTs are response organizations, but that they are there to provide advice and
assistance to the OSC, as necessary. In response, ' 300.115 was not intended
to portray the RRTs as response organizations. It indicates that they are the
"appropriate regional mechanism for development and coordination of
preparedness activities before a response action is taken and for coordination
of assistance and advice to the OSC/RPM during such response actions." The
proposed ' 300.115(1)(7) indicated, however, that the standing RRT should "be
prepared to respond to major discharges or releases outside the region." This
may have been somewhat misleading, and has been changed to indicate that the
RRT may provide "response resources" to major discharges or releases outside
the region.
It was also recommended that the RRT support the designated OSC/RPM of
the state response agency without assuming federal OSC direction and
coordination of all other efforts at the scene of the release. EPA does not
agree with this suggested comment to ' 300.115(b). An essential purpose of
the national response system is to ensure federal readiness to handle a
response which might exceed local and state capabilities. That being so, the
RRT would generally not be activated unless the federal government was needed
as the lead in the response. In general, the authorities under which a
federal agency operates require that commitments of federal resources and
personnel be made through particular channels or command chains. Through
specific memoranda of understanding, state OSC/RPMs could request certain
kinds of federal assistance from individual agencies, but the RRT as a unit is
designed to support a federal OSC in those situations where the size or nature
of the response calls for a significant federal presence. (Experience shows
that a federal OSC is on scene many times with no need to activate the RRT.)
Another commenter wanted the following language added to
300.115(c): "If the RRT is activated upon the request of the state
representative to the RRT, then the chair of the incident-specific RRT may be
that representative if the members of the RRT so agree." EPA does not agree
with the comments. Who sits as chair and co-chair to the incident-specific
RRT depends on where the spill occurred and who provides the OSC/RPM, not who
requests activation of the RRT. Certainly, the state representative will
always be an active member of the incident-specific RRT when a spill occurs in
the particular state, but the chair or co-chair will usually be the USCG or
EPA representative.
Also suggested was the reconsideration of the extension of
300.115(d) to allow for the participation of the Indian tribal governments on
both the standing RRT and on incident-specific RRTs. Given that there are
over 200 federally recognized Indian communities or groups in Alaska,
participation by these entities on the same basis as the State of Alaska in
the planning and coordination functions of the RRT is not administratively
feasible. The comment stated that this provision should be modified to allow
flexibility in determining how Alaska Native villages will be represented on
the Alaska RRT.
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EPA understands the commenter's concern as to the workability of a large
number of Indian tribal governments participating in an RRT's activities.
However, the 1986 amendments to CERCLA added several provisions for Indian
tribal governments to be afforded the same opportunities as states. Indeed,
CERCLA section 126(b) specifically states that "[t]he governing body of an
Indian tribe shall be afforded substantially the same treatment as a state
with respect to the provisions of...section 105 (regarding roles and
responsibilities under the national contingency plan...)." It is consistent
with that provision to include Indian communities in the national response
system by having their jurisdictions recognized in the context of nationwide
provisions for response activities. The proposed NCP language appeared to be
the best way to allow interested Indian tribal governments to determine if the
benefits of RRT membership would be such that they would be willing to
undertake the responsibilities of RRT membership, or if there is an ad hoc
basis, a planning project, or other basis on which an RRT-tribal relationship
might be useful. In some regions, an existing inter-tribal or multi-tribal
organization might provide appropriate representation. The language in the
proposed rule was intended to afford these kinds of opportunities.
Furthermore, it was submitted that, for consistency, it would be much
more effective to mandate local government involvement from the national
level, rather than to rely upon each state. The comments state that due to
the impact a local jurisdiction can experience from a hazardous substance
release, it is imperative that local governments have the ability to
participate on the RRT. EPA agrees that the impacts to a local government from
a major release are substantial, but EPA does not agree that the local
government should be mandated to participate in all RRT activities. The local
governments may attend meetings and may actively participate in RRT functions
through their state representative. The state representative is generally
responsible for actively representing the interests of the local governments.
If the state representative is performing his/her duties properly, all local
governmental interests will be represented at RRT functions.
Also, it was suggested that RRT review of LEPC plans should be conducted
only after the plans have been reviewed by the SERC, as required. EPA agrees
that the RRTs will not be able to review and comment on every LEPC plan within
their region. LEPC plans should be initially reviewed by the states, and if
the state believes that the RRT should also review the LEPC plan, then the
state should request such a review from the RRT.
One commenter wanted the phrase "or participation in" inserted after
"conduct" in ' 300.115(i)(8), noting that this would allow the state RRT
representative/SERC the ability to request RRT participation, within allowable
resources. EPA agrees that the phrase "or participate in" should be inserted
after "conduct" in ' 300.115(i)(8). This would give the RRT more flexibility
in deciding whether it wanted to manage a particular exercise or training
program or simply act as a participant.
Regarding ' 300.115 (j) (1) (i), one commenter raised the question of who
decides when the OSC's/RPM's response capability is exceeded. This question
does not need to be addressed in the final rule. The particular OSC/RPM will
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know when his/her response capability is going to be exceeded, and that
information will be passed on to the RRT as soon as it is known. In addition,
if the agencies on the RRT believe that the response capability to the OSC/RPM
will be exceeded, then they also have the option of activating the RRT.
There was a request for clarification as to whether a pollution report
satisfies the requirement for written confirmation of a request for RRT
activation under ' 300.115(j)(2). EPA responds that a written
pollution report confirming the request to activate the RRT would satisfy the
requirement; the pollution report is the primary means of providing
information during the course of an
start 55 FR 8674
incident. A request to activate the RRT should also be confirmed in a letter
from another RRT representative.
Also, it was suggested that ' 300.115(k) be expanded to address the
contingency of what happens when a federal lead agency fails to perform its
assigned role. The comment stated that if this situation occurs, the RRT
should be notified and EPA or the USCG should assume the federal
responsibilities.
In E.O. 11735 and E.O. 12580, the President has delegated certain
functions and responsibilities vested in him by the CWA and CERCLA to various
federal agencies. If federal agencies cannot perform their assigned tasks,
such federal agencies may authorize another agency to perform the task through
interagency agreement or contract. (See also preamble discussion below on
' 300.130(a).)
Final rule: Proposed ' 300.115 has been revised as follows:
1. The second sentence of ' 300.115(c) reads: "When the RRT is activated
for response actions, the chair shall be the member agency providing the
OSC/RPM."
2. Section 300.115(i) (7) : "Be prepared to provide response resources to
major discharges or releases outside the region."
3. Section 300.115 (i) (8) : "Conduct or participate in training and
exercises as necessary to encourage preparedness activities of the response
community within the region."
Name: Section 300.120. On-scene coordinators and remedial project managers:
general responsibilities.
Proposed rule: Consistent with the delegation of the President's response
authority to the various federal agencies under Section 2(d)-(f) of Executive
Order 12580, proposed ' 300.120(b) specifies when federal agencies other than
EPA or USCG shall provide OSCs and RPMs.
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Response to comments: One commenter recommended that proposed
300.120 be divided into two subsections. One subsection would discuss the
responsibilities of an OSC and the other subsection would discuss the
responsibilities of an RPM. In the commenter's view, the responsibilities of
an OSC and an RPM do not overlap as much as was suggested in proposed
300.120 .
Another commenter recommended that a distinction be developed between
actions where the OSC is in a monitoring role and actions where the response
is undertaken using a federal funding mechanism such as the oil pollution fund
established under CWA section 311(k) or the Hazardous Substance Superfund.
The commenter stated that when the response action is federally funded, local
responders "interpret the OSC's actions as tantamount to a command role."
In response, the NCP is intended to provide a framework within which
response managers have the flexibility to use their best judgment, consonant
with applicable law, regulation and guidance. In general, the role of the RPM
parallels that of the OSC. Also, in general, the role of the OSC is the same
whether or not the response action is federally funded. The roles as they are
described in the current NCP are accurate, though not very detailed. EPA
feels that the comments are well taken, and that it might be useful to have
somewhat more detailed, separate descriptions of OSC and RPM responsibilities,
and of any differences in OSC actions depending on whether the response is
federally funded or funded by the responsible party. EPA has decided not to
make such revisions in today's rule but will explore this matter with other
federal agencies and will also consider developing guidance on this subject.
Another commenter pointed out that a state law may provide a fire chief
with coordination authority over all on-scene officials, federal, state, and
local, and inquired if the local fire chief's authority is superseded by
proposed ' 300.120. In addition, the commenter suggested that a conflict can
be avoided if the authority to supersede the local fire chief's authority was
clearly spelled out. Finally, the commenter recommended that
300.120 be amended to permit the OSC to delegate his authority to a state or
local official.
In response, the legal authority of the OSC to take action to respond to
a discharge or release is section 311(c) of the Clean Water Act (CWA), 33
U.S.C. ' 1321(c) or section 104 of CERCLA. To the extent that an action of a
state or local official to direct response actions conflicts with actions
under federal law to direct response, the federal law will prevail if there is
federal participation in the response action. However, circumstances under
which an OSC's authority is changed (local or state to federal, for example)
should be spelled out in federal and local contingency plans, so that problems
with conflicting authorities do not arise at the scene of a response action.
With regard to the recommendation that ' 300.120 be amended to permit
the OSC to delegate his/her authority to a state or local official, such
delegation is allowed only to the extent authorized by law. There is no
mechanism provided under the CWA for such a delegation. Section 104(d) of
CERCLA, however, does permit certain agencies of the federal government to
enter into contracts or cooperative agreements with a state to undertake, on
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behalf of the United States, actions authorized by section 104 of CERCLA.
Finally, changing ' 300.120 to clearly state that the federal OSC's authority
supersedes the authority of the local fire chief is not necessary because
300.120 states that the OSC "... directs response efforts and coordinates all
other efforts at the scene . . . . "
Paragraph (a): One commenter recommended that the term "hazardous waste
management facility" used in proposed
300.120(a)(1) be defined since, according to the comment, it is unclear
whether all facilities under the jurisdiction, custody or control of a federal
agency are considered to be hazardous waste facilities. According to the
comment, if all such federal facilities are "hazardous waste management
facilities," the section should be amended to conform to E.O. 12580. The
comment apparently relates to the following sentence in the proposed rule:
"The USCG shall provide an initial response to the discharges or releases from
hazardous waste management facilities within the coastal zone in accordance
with DOT/EPA Instrument of Redelegation...."
The comment appears to assume that this section is intended to apply to
all or many federal facilities as that term is used in section 120 of CERCLA.
Instead, the NCP reference to "hazardous waste management facility" is to its
very narrow meaning within the terms of the DOT/EPA Instrument of Redelegation
(May 27, 1988) dealing with predesignation of Coast Guard and EPA OSCs. For
this reason, it is not necessary to define this term in the NCP.
With regard to ' 300.120(a) (2), another commenter recommended that the
term "federally funded" be deleted and "Fund-financed" be inserted, because
EPA's authority to undertake response actions with regard to releases from
facilities or vessels owned, possessed or controlled by other federal agencies
is limited by E.O. 12580. The recommended change is not necessary since
proposed ' 300.120(a)(2) provides for an exception to the general statement of
EPA authority for facilities and vessels under the jurisdiction or control of
other federal agencies. No change is necessary since the exception is
consistent with Executive Order 12580.
Paragraph (b): One commenter recommended that ' 300.120(b) be amended
to indicate which agency would be responsible for providing
start 55 FR 8675
OSCs and RPMs in the case of a release from a Coast Guard vessel. In
addition, the commenter recommended that "emergencies" be defined in
300. 120 (b) (2) .
With regard to the first comment, in accordance with sections 2(e) and
(f) of E.O. 12580, the Department of Transportation is responsible for
providing OSCs and RPMs in the event of a release from a Coast Guard vessel.
As written, proposed ' 300.120(b)(2) stated that in the case of a federal
agency other than the USCG, EPA, DOD or DOE, the federal agency involved shall
provide the OSC or RPM. The final rule does not include the USCG in
300.120(b) (2) so that it is clear that the USCG will respond to a release
from a USCG vessel.
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Regarding the second comment, the preamble to the proposed rule provided
a definition of the term "emergencies" for purposes of the delegations under
E.O. 12580 (53 FR 51396) . An additional definition in ' 300.120(b) (2) is
unnecessary.
Paragraph (c): One commenter stated that the Department of Defense
(DOD) only has removal response authority for incidents involving DOD weapons
and munitions. EPA agrees and has revised this section to state that DOD will
have response authority for incidents involving weapons and munitions within
the control, custody or jurisdiction of DOD.
Paragraphs (d) and (e): One commenter stated that while
300.120(d) is supposed to describe the general responsibilities of OSCs and
RPMs, it is primarily concerned with which federal agency will provide the OSC
or RPM. EPA disagrees. In addition to specifying the agency that provides the
OSC or RPM, ' 300.120 also contains a description of the general
responsibilities of OSCs and RPMs.
In order to further clarify the general responsibilities of OSCs and
RPMs, EPA has added language to paragraphs (d) and (e) to make it clear that
OSCs and RPMs are responsible for coordinating and directing responsible
parties -- as well as agencies and contractors -- in their conduct of either
federally financed or non-federally financed (e.g., enforcement) response
actions. Under this authority, OSCs and RPMs may stop or redirect work if, in
their judgment, it appears likely to result in a release or threatened release
of hazardous substances into the environment or poses an imminent and
substantial endangerment to human health, welfare or the environment.
Paragraph (f): One commenter stated that the role of the support agency
coordinator (SAC) should not be limited to responding as requested by the
OSC/RPM. Both the federal government and the state government should
designate an OSC or RPM with parallel responsibilities. EPA believes that it
is essential to have one person in charge and responsible for seeing that the
response action proceeds expeditiously and, therefore, has not made this
change.
Paragraph (g): Two commenters suggested that the NRT establish a
curriculum for OSCs and RPMs and a certification process. In response, the
NCP is not the appropriate mechanism for addressing this recommendation. The
comments on this topic have been forwarded to the National Response Team for
further action as it deems appropriate.
Final rule: Proposed ' 300.120 is revised as follows:
1. The fourth sentence of ' 300.120(a)(1) has been amended by adding the
following: "... except as provided in paragraph (b) of this section."
2. The last sentence of ' 300.120(a)(2) has been amended by deleting
"except those involving vessels" and adding the following: "except as
provided in paragraph (b) of this section."
3. Section 300.120(b)(2) has been revised by deleting "USCG."
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4. Section 300.120(c) has been revised as follows: "DOD will be the
removal response authority with respect to incidents involving DOD military
weapons and munitions or weapons and munitions under the jurisdiction, custody
or control of DOD."
5. EPA has added language to paragraphs (d) and (e) to make it clear
that OSCs and RPMs are responsible for coordinating and directing responsible
parties -- as well as agencies and contractors -- in their conduct of either
federally financed or non-federally financed (e.g., enforcement) response
actions.
Name: Section 300.125. Notification and communications.
Proposed rule: The proposed NCP added the word "notification" to the title of
this section, and moved its location to more accurately reflect its place in
the response sequence. Both the title and the location change better reflect
the importance of the National Response Center (NRC) in the national response
system.
Response to comments: One series of comments cited potential confusion about
notification procedures -- reporting of spills or releases -- to any place
other than the NRC, since the proposed NCP, in various places, suggests such
alternatives as notifying EPA or USCG OSCs directly when it is "not
practicable" to reach the NRC. The commenter suggested that the NCP should
clarify that reporting to the NRC is a provision in law, not an option. No
matter how many other places a spill is reported, the notification must be
made to the NRC by the person in charge of the vessel or facility, as soon as
possible.
EPA agrees with these comments, but believes the language in ' 300.125
is simple and direct, and makes clear the requirement for notice to the NRC.
Two changes were made in notification language elsewhere in the rule, however,
to emphasize the commenter's point. In Subpart D, ' 300.300(b), and in
Subpart E, ' 300.405(b), identical changes were made to reinforce the
requirement for reporting to the NRC regardless of other reports or
notifications made. The operative sentences will now read: "If it is not
possible to notify the NRC or predesignated OSC immediately, reports may be
made immediately to the nearest USCG unit. I^^n^_event, such person in
charge of the vessel or facility shal^jiotif^ the NRC as soon as possible."
(New language underlined.)
It was suggested that more places in the NCP should repeat the concept
that whenever there is doubt as to the size or nature of a spill or release,
or which reporting requirements are applicable, reporting to the NRC is
encouraged. Although recognizing the potential for confusion, EPA believes
that the rule should state the notification or reporting requirement as simply
and directly as possible, in the proper sequence of actions delineated by the
rule. Other methods, outside of rulemaking, should be found to make the
industry and the general public aware of these responsibilities. Repeating
the concept in various places with various different wordings has the
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potential for additional interpretations, which may be misleading. Some
suggested language described which actions do not meet the requirements of the
law. The final rule describes which actions do satisfy the statutory
requirements.
Also, the commenter recommended that the tone and clarity of language on
reporting requirements in the preamble to the proposed rule (53 FR 51401,
third column) should be included in the rule itself. EPA believes that these
two paragraphs are more appropriate in a preamble and is repeating them here
because of their importance:
EPA reiterates that statutory and regulatory reporting requirements are
still keyed to discharges of oil and releases of hazardous substances
exceeding a reportable quantity (RQ).
start 55 FR 8676
EPA is aware, however, that many notifiers do not have the training or
knowledge to determine if there is an RQ of a substance involved in a release.
Therefore, whenever there is any doubt about whether a release exceeds an RQ,
EPA encourages that the release be reported to the NRC. Reporting ensures
positive referral of every incident to each federal agency with jurisdiction
and/or regulatory interest.
The NRC is tasked with processing all reports regardless of the material
involved or the reported significance of the incident. All reports are passed
immediately by telephone to the proper federal response entity and recorded in
the NRC data base at the time of receipt. Public, government, industry, or
academic requests for access to stored data may be made through a written
Freedom of Information Act request to the Chief, National Response Center,
2100 Second Street N.W., Room 2611, Washington, DC 20593.
One commenter suggested that many people are not aware of the range of
functions for which the NRC is responsible. After careful scrutiny, EPA has
decided that not all the NRC functions are appropriately listed in a section
covering on-scene action, the intent of ' 300.125. However, the basic
activities will be listed in a new entry in ' 300.175, Federal agencies:
additional responsibilities and assistance.
One commenter said that ' 300.125(b) should not put the responsibility
for the NRC facility/service on the Coast Guard as a requirement, since
support for the NRC is a cooperative federal effort under Coast Guard lead.
EPA agrees and has inserted the phrase "in conjunction with other NRT
agencies," to this section.
One comment cited an error in the commercial phone number listed in the
proposed NCP. EPA agrees; the correct telephone number is 2 02-2 67-2 67 5.
Final rule: Proposed '' 300.125, 300.300(b) and 300.405(b) are revised as
follows:
1. Section 300.125(a) has been revised to more accurately describe the
responsibilities of the National Response Center for notification and
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communications.
2. Section 300.125(b) has been amended by including the phrase "in
conjunction with other NRT agencies."
3. Section 300.125(c) now includes the correct commercial telephone
number for the NRC: 2 02-2 67-2 67 5.
4. The last two sentences in '' 300.300(b) and 300.405(b) now read as
follows: "If it is not possible to notify the NRC or predesignated OSC
immediately, reports may be made to the nearest USCG unit. In any event, such
person in charge of the vessel or facility shall notify the NRC as soon as
possible."
Name: Section 300.130. Determinations to initiate response and special
conditions.
Proposed rule: Proposed ' 300.130(a) authorized EPA or the USCG to respond to
discharges of oil or releases of hazardous substances, pollutants or
contaminants except with respect to such releases on or from vessels or
facilities within the jurisdiction, custody or control of other federal
agencies. This section also described requirements with respect to certain
kinds of releases, e.g., radioactive materials.
Response to comments: Paragraph (a): Several commenters commented that some
federal agencies may be unable, due to lack of expertise, orientation, or
funding, to respond to the threat of release or actual release of hazardous
substances, pollutants or contaminants at their facilities. Accordingly, the
commenters recommended that EPA and the USCG be given unrestricted response
authority over releases, actual or threatened, at all federal facilities,
except DOD and DOE facilities, and that federal agencies other than EPA, the
USCG and, presumably, DOE and DOD should only be given lead agency authority
if and when they meet certain minimum standards. One commenter stated that
proposed
300.130(a) does not specifically grant authority to a federal agency to
initiate a response, and that the section should grant this authority. The
commenter noted that the executive order delegating the President's authority
under CERCLA grants this authority, and indicated that ' 300.130(a) should
reference the executive order.
In response, EPA disagrees with the commenter's suggestion that the USCG
and EPA should retain unrestricted response authority over releases at federal
facilities. In section 115 of CERCLA, Congress specifically authorized the
President to "delegate and assign any duties or powers imposed upon or
assigned to him" in the statute. By Executive Order 12580 (52 FR 2923, Jan.
29, 1987), the President delegated to federal agencies and departments the
responsibility and authority for taking most response actions at non-NPL sites
within their jurisdiction, custody, or control. (EPA believes that the
explanation of these authorities in this preamble is sufficient, and need not
be specifically repeated in the text of the rule.) Moreover, CERCLA section
120 makes clear that federal agencies are primarily responsible for the
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conduct of the RI/FS and remedial action at federal facility sites that are
listed on the NPL. Amending
300.130(a) of this rule to designate USCG and EPA as lead agencies for
responses at federal facility sites would not accord with these mandates.
At the same time, it is important to note that federal agencies may
request the services of the USCG or EPA on a reimbursable basis, and the
NRT/RRT system provides for quick, appropriate communication of such requests.
Experience to date has generally shown this to be adequate. A memorandum of
understanding between a federal agency and EPA or USCG would also be possible
to cover both required action and funding procedures, allowing for EPA and
USCG to manage responses under certain predetermined circumstances.
Some commenters further recommended that federal agencies should be
required to immediately notify the NRC and the appropriate RRT whenever the
federal agencies are unwilling or unable to respond to a release.
In response, as a threshold matter, the federal agencies and departments
are already required by section 103(a) of CERCLA to report all releases of
reportable quantities of hazardous substances to the National Response Center.
(Pursuant to section 103(a), the National Response Center notifies the
Governor of each state whenever a report of a release is made with respect to
that state.) In addition, with regard to federal facilities on the Hazardous
Waste Compliance Docket (which includes releases for which a report is
required under CERCLA section 103(a) and (c)), the federal agencies and
departments are required to conduct a Preliminary Assessment (PA), after which
EPA will evaluate whether the release should be listed on the NPL.
As to the specific suggestion of the commenter that federal agencies may
be "unwilling or unable" to respond to certain releases, it is important to
note that pursuant to CERCLA section 115 and E.O. 12580, the federal agencies
and departments have been delegated the responsibility under CERCLA section
104 for evaluating and taking response actions, as^ecessar^, for most
releases that occur at non-NPL facilities within their jurisdiction, custody,
or control (E.O. 12580, at section 2(d) and (e)). The federal agencies also
have responsibilities for the conduct of response actions at NPL sites
pursuant to CERCLA section 120. EPA does not believe that a separate
reporting requirement is necessary to address those situations where the
federal
start 55 FR 8677
agency or department decides that a response action is not necessary.
In situations where a federal agency experiences some difficulty in
responding to a release, it is the general practice of the agencies to contact
one or more of the sister agencies that have special expertise regarding the
contamination problem (e.g., the Department of Defense for munitions waste,
EPA more generally). As discussed above, the agencies may request the
assistance of EPA or the USCG on an emergency basis, or enter into a more
general memorandum of understanding. Finally, federal facility releases are
included on the Hazardous Waste Compliance Docket, and are then evaluated by
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EPA for possible inclusion on the NPL; thus, EPA will be aware of significant
releases to which the federal agency or department has been unable to respond
as those releases move through the evaluation process. In conclusion, it is
unnecessary to require the federal agencies to provide special notice to the
NRC as suggested by the commenter.
Paragraph (b): One commenter recommended that the first line of
300.130(b)(1) be revised by deleting "any oil is discharged" and inserting
"there is a discharge of oil." The recommendation is suggested on the grounds
that the definition of "discharge" in Subpart A does not necessarily include
the use of discharge as a verb. EPA does not agree with this comment.
The commenter pointed out that under section 104(a)(1) EPA, as the
President's delegate, is authorized to take response action when there is a
release or threatened release of a pollutant or contaminant only if the
release or threatened release may present an imminent or substantial
endangerment to the public health or welfare. Therefore, the commenter
recommended that proposed ' 300.130(b)(2) be revised to conform to section
104(a)(1) of CERCLA. In response, although "pollutant or contaminant" is
defined for purposes of the NCP to mean any pollutant or contaminant that may
present an imminent and substantial danger to public health or welfare (see
300.5), EPA has made the requested change for purpose of emphasis.
Final rule: Proposed ' 300.130 has been revised as follows:
1. Section 300.130(a) has been revised to begin "In accordance with CWA
and CERCLA,
2. Section 300.130(b)(2) has been revised to read: "Any hazardous
substance is released or there is a threat of such a release into the
environment, or there is a release or threat of release into the environment
of any pollutant or contaminant which may present an imminent and substantial
danger to the public health or welfare; or"
Name: Section 300.135. Response operations.
Proposed rule: This section describes the responsibilities of the OSC/RPM to
direct response efforts and coordinate all other efforts at the scene of a
discharge or release. This section provides that the first federal official
is authorized to coordinate activities on-scene and to initiate, in
consultation with the OSC, any necessary actions. This official may also
initiate Fund-financed actions as authorized by the OSC.
Response to comments: One commenter stated that while it is understood that
specific response actions for every situation cannot be defined, guidance on
how a response escalates from local to federal levels would be helpful. EPA
believes that it is not practicable to provide specific guidance on how a
response escalates from local to federal levels, due to the vast number of
variables that are implicit in every spill scenario.
Referring to ' 300.135(b), one commenter said that, regarding
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expenditures from the various federal funds, members of state pollution
response agencies should be given the same scope of action as described in
300.135(b) for the "first federal official" to arrive on scene. The commenter
argued that state response personnel are knowledgeable of "first response"
measures, as well as being familiar with basic cost documentation procedures.
The commenter noted that existing EPA and USCG procedures are too cumbersome
to allow negotiation of a cooperative agreement or contract in the initial
hours of an emergency response operation.
EPA acknowledges the fact that state response personnel are
knowledgeable of first response measures as well as basic cost documentation
procedures. EPA and USCG procedures may be cumbersome in negotiating a
cooperative agreement, but these procedures are necessary in order to maintain
control of the two pollution funds. Under certain situations, the states can
be reimbursed for their costs by the CWA 311(k) fund, in accordance with USCG
rules for managing this fund.
Another commenter suggested that, for consistency, the authority of the
first federal official to arrive at the scene of a release, which is discussed
in ' 300.135(b), should be discussed under ' 300.130 with the other
authorizations for the initiation of response. EPA disagrees. This
discussion is more appropriate in 300.135(b), because it deals primarily with
the coordination of response activities on scene by the first federal
official.
One commenter indicated that, under ' 300.135(d), states should be
encouraged to enter into cooperative agreements for removals under section 311
of the CWA or under CERCLA. Although EPA supports the concept, it does not
feel it is necessary to add it as a regulatory requirement. (See also
preamble section below on state involvement in removal actions.)
Another commenter noted that the requirement or expectation under
300.135(e) that RPMs will consult with the RRT should not be promulgated
unless the relationship between RPMs, the NRT, and the RRT has been clarified.
In response, the relationship between RPMs, the NRT, and the RRT during
remedial actions generally parallels the relationship between OSCs, the NRT,
and the RRT during removal actions. These relationships are described in
'' 300.110, 300.115, and 300.120.
One commenter stated that ' 300.135(f) and the definition of support
agency coordinator suggested that the concept of support agency only applies
to CERCLA releases. If so, the reference to the OSC advising the support
agency for oil discharges, should be deleted. EPA agrees. By definition, the
support agency coordinator "interacts and coordinates with the lead agency for
response actions under Subpart E of this part." There is no designation of
the use of a support agency or support agency coordinator under the CWA.
In ' 300.135(h), one commenter asked who defines "possible public health
threat." The commenter contended that although it is necessary to have some
broad language, misunderstandings can be reduced by more definitive phrases.
The determination of a "possible public health threat" is made by the
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OSC/RPM in consultation with other appropriate agencies. EPA believes that
300.135(h) appropriately addresses this point. This section specifically
states that assistance is available from the Department of Health and Human
Services (HHS) in making the determination of public health threats.
Under ' 300. 135 (i), one commenter indicated that there should be a
requirement that the name of the office designated by each federal agency to
coordinate response should be submitted to the RRT for inclusion in the
regional contingency plan (RCP) and to the OSC and State Emergency Response
Commission (SERC) for inclusion in
start 55 FR 8678
local contingency plans (LCPs) and Local Emergency Planning Committee (LEPC)
plans .
EPA believes that it is important that this information be passed on to
the RRT and local response agencies. However, it is not necessary to place
this requirement in the NCP. If it was, EPA should require, through the NCP,
every facility, vessel, etc., to provide the same information to the RRT and
local response agency. Through their normal contingency planning process,
this information should be readily available to the RRT and local response
agencies.
A commenter noted that under ' 300.135(m), it is not clear when it would
be appropriate for an RPM to submit pollution reports to the RRT. In
response, EPA wishes to clarify that the pollution reports described in
300.135(m) are prepared for removal actions; thus, these reports are generally
submitted by an OSC rather than an RPM. EPA has deleted the reference to
"RPM" in this section.
Finally, it was commented that ' 300.135(n), which requires that
OSCs/RPMs inform public and private interests and consider their concerns
throughout the response, does not address what kind of responses are being
referenced. Also, this section should encourage appropriate public and
private interests to become appropriately involved after the first
notification and not to expect the OSC to keep them informed through updates.
In response, EPA believes that specifying the type and size of the
incident response is not meaningful. All incident responses require some kind
of communication between all public and private parties. Regarding the second
part of the comment, EPA has no authority to require the public and private
interests to contact the OSC for information. Keeping the appropriate
interests informed by the OSCs/RPMs is simply a policy issue and represents
good program practices.
Final rule: Proposed ' 300.135 has been revised as follows:
1. In ' 300.135(f), the words "discharges or" have been deleted.
2. Section 300.135 (j) has been revised to read as follows (see preamble
discussion on ' 300.615 (notification)): "The OSC/RPM shall promptly notify
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the trustees for natural resources of discharges or releases that are injuring
or may injure natural resources under their jurisdiction. The OSC or RPM
shall seek to coordinate all response activities with the natural resource
trustees."
3. In 300.135(m), the reference to "RPM" has been deleted.
Name: Section 300.140. Multi-regional responses.
Proposed rule: This section discusses the procedures to follow in the event a
discharge or release covers more than one jurisdictional area.
Response to comments: Commenters noted that ' 300.140 should clearly state
that the OSC responsible for the area in which the release originated is
initially in charge. Changing OSCs can be accomplished after this point. EPA
disagrees with the comments. Sections 300.140(a) and (b) clearly outline
OSC/RPM responsibilities in spill situations when more than one area will be
impacted.
Another commenter pointed out that, in reality, the border between
regions or districts becomes a no-man's land in which neither wishes to
respond. While there can only be one OSC, the other affected regions/districts
should have a representative at the command post. EPA disagrees with this
comment concerning command posts and, therefore, has not changed the NCP. At
the time of the spill, a simple agreement between the two predesignated OSCs
or RRTs can alleviate this problem.
Another commenter noted that the NCP should reflect the fact that more
than one OSC can be designated if the area impacted extends for many miles.
EPA disagrees. There should only be one OSC coordinating the response
efforts. The OSC may, however, utilize a number of OSC representatives to
handle the response efforts in the outlying sections of a large spill area.
Final rule: Proposed ' 300.140(c) is revised to delete an inappropriate
reference to EPA/USCG agreements.
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Name: Section 300.145. Special teams and other assistance available to
OSCs/RFMs.
Proposed rule: This section describes the special teams that are available to
the OSC/RPM and the availability of the scientific support coordinator (SSC).
Response to comments: One commenter stated that there is no reason for the
title of this section to be changed from "Special Forces" to "Special Teams."
The change only diminishes the role of the special forces. EPA disagrees.
The change does not diminish the role of the special teams. It merely places
a title upon this group of specialized teams that is more commonly used (i.e.,
Strike Teams, Public Information Assist Teams, Environmental Response Teams).
Another commenter indicated that it may be appropriate to specifically
identify the ATSDR Public Health Advisors and Emergency Response Branch in
this section as a special resource available to an OSC, as their availability
is not well advertised. In response, ATSDR's role is not the same as that of a
team, which is a unit organized and specially prepared to respond on call.
ATSDR has both specific authorities for response and special expertise which
might be called upon by an OSC, and thus their role is like those of other NRT
member agencies. These are outlined in ' 300.170. Other means of
highlighting their availability, more appropriate and effective than the
suggested revision to the NCP, would be to ensure that ATSDR activities and
availability are referenced in local plans and OSC plans.
A commenter stated that ' 300.145(d) should define the capabilities of
an SSC and include what they can be expected to provide to the OSC. In
response, although the term SSC as used throughout the NCP implies a single
individual, in the case of the National Oceanic and Atmospheric Administration
(NOAA), this support is in fact provided by a team of experts, several of whom
may be in the field at the same time. This section has been revised to
reflect the capabilities of an SSC.
Another commenter stated that an OSC often requires more information
than is available from the responsible party, the Technical Assistance Team
(TAT), or the SSC. Provided that the responsible party is willing to pay for
additional scientific support, the OSC should be allowed to utilize other
scientific experts without opening federal accounts.
In response, the OSC is allowed to utilize other scientific experts
without opening federal accounts, provided he/she can convince the responsible
party to pay for them. In most situations, if a particular resource is needed
by the OSC/RPM, the OSC/RPM will request that the responsible party fund the
particular resources. If the responsible party refuses, then the only other
option the OSC/RPM has is to fund the resource using federal monies.
One commenter recommended that the description of the EPA Radiological
Assistance Teams (RATs) in ' 300.145(f) should be moved to the general agency
descriptions in ' 300.175(b)(2) or deleted. If this reference is retained,
the commenter stated that something should indicate how the Radiological
Response Coordinator is to be contacted. In response, proposed
300.145(f) stated that the EPA Office of Radiation Programs (ORP) maintains
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the Radiological Assistance Teams. This section also stated that the
assistance of
start 55 FR 8679
Radiological Assistance Teams can be obtained by contacting the Radiological
Response Coordinator. However, it is not explicitly stated that the
Radiological Response Coordinator is located and can be contacted in ORP. EPA
will make the clarification by adding "...in the EPA Office of Radiation
Programs" after "Radiological Response Coordinator." EPA believes that it is
more appropriate to reference EPA's Radiation Program in ' 300.145 rather than
300.175 because the reference directly relates to providing assistance to
the OSC/RPM.
Final rule: Proposed ' 300.145 is revised as follows:
1. Section 300.145(d) has been revised to add the following sentence at
the end of the section: "In the case of NOAA, SSCs may be supported in the
field by a team providing, as necessary, expertise in chemistry, trajectory
modeling, natural resources at risk, and data management."
2. In 300.145(f), EPA has added "...in the EPA Office of Radiation
Programs" after "Radiological Response Coordinator," in the next to last
sentence.
Name: Section 300.150. Worker health and safety.
Proposed rule: Section 300.150 requires that each employer at response
actions comply with the requirements of the Occupational Safety and Health Act
of 1970, applicable state laws, and EPA regulations regarding worker safety
and health. Section 300.150 applies to actions taken either by a responsible
party or a lead agency and requires that there be an occupational safety and
health program for the protection of workers at the response site.
Response to comments: One commenter recommended using the Incident Command
System (ICS) concept as contained in the Occupational Safety and Health
Administration (OSHA) rule to integrate response activities. In response, EPA
notes that
300.150(a) requires that response activities meet the requirements of 29 CFR
1910.120, Hazardous Waste Operations and Emergency Response, promulgated by
OSHA, including the ICS concept (section 1910.120(q)(3)(i)). Executive Order
12196 conveys the President's mandate that federal agencies comply with OSHA
standards. State applicability is covered as described below. Routine
hazardous waste operations do not require use of ICS. Thus, no change is
needed in the rule, since if the situation warranted use of the ICS concept,
it would already be covered within the 300.150(a) requirements of the NCP.
The responsibility for assuring worker safety and health at a response
scene is that of the employer. This is stated expressly in proposed
300.150(a)(and in final ' 300.150(e)). One comment indicated some confusion
as to this requirement, particularly regarding firefighters involvement during
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response actions. In response, worker safety and health during response
activities is protected by the regulations cited in this section, whether the
workers are employed by private employers, or federal, state, or local
governments. Federal employees are covered by the OSHA standards, as stated
above. State and local government employees in the 23 states and 2
jurisdictions which have their own OSHA-approved occupational safety and
health plans are covered by the state standards which must be comparable to
the federal standards. These states are Alaska, Arizona, California,
Connecticut, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota,
Nevada, New Mexico, New York (for state and local government employees only),
North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont,
Virginia, Virgin Islands, Washington, and Wyoming. State and local government
employees (such as firefighters) in the remaining 27 states (such as Ohio,
plus Guam and the District of Columbia) are subject to EPA regulations
identical to OSHA standards for response action workers under section 126 of
SARA and 40 CFR 311. The EPA rule will apply to firefighters by March 6, 1990
for emergency response (and September 21, 1989 for other relevant activities).
One commenter suggested that proposed ' 300.150 be revised to state that
the OSC should be alert to unsafe work practices and notify the regional OSHA
office when such practices are observed. EPA agrees that the OSC may be in a
position to observe unsafe work practices. However, no change is needed
because EPA believes that since workplace safety and health conditions are the
responsibility of the employer, unsafe practices should first be reported to
the appropriate employer because the employer is in a position to make an
immediate correction. If the condition remains uncorrected, it should be
reported to the appropriate enforcement authority, whether it is federal OSHA,
state OSHA, or EPA.
Further, highlighting a special responsibility for an OSC in this area
carries additional implications -- if the OSC fails to notice the violation,
the employer might see that as official approval of his practice. Also, in
general, the NCP sets out an organization and framework for generally needed
actions and responsibilities, within which the OSC has, and must have,
latitude to exercise his judgment. No section of the plan lists all possible
actions of an OSC, however exceptional.
One commenter noted that the National Contingency Plan (NCP) requires
CERCLA actions to directly comply with OSHA standards (proposed ' 300.150),
rather than complying only to the extent those standards are "applicable or
relevant and appropriate requirements" (ARARs) under CERCLA section 121(d)(2),
42 U.S.C. 9621(d)(2). The commenter questioned why OSHA standards should be
treated differently from other federal statutes.
In response, there are two principal reasons for the treatment of OSHA
standards as non-ARARs in the NCP. First, as discussed below, Congress
appears to have intended that certain OSHA standards apply directly to all
CERCLA response actions. Second, EPA believes that OSHA is more properly
viewed as an employee protection law rather than an "environmental" law, and
thus the process in CERCLA section 121(d) for the attainment or waiver of
ARARs would not apply to OSHA standards.
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However, before addressing those issues in more detail, review of the
comment revealed an inconsistency in the manner in which OSHA standards are
considered under the NCP. As the commenter notes, proposed NCP ' 300.150
directly requires CERCLA actions to comply with certain OSHA standards (e.g.,
29 CFR Parts 1910, 1926) (53 FR at 51489), while at the same time, the
preamble to the proposed rule included most OSHA standards in EPA's list of
potential ARARs (53 FR at 51448). This situation requires clarification,
because requirements that are promulgated as part of the NCP are not evaluated
for attainment or waiver as part of the ARARs process.
As a threshold matter, EPA believes that Congress intended certain OSHA
standards (those for response action workers) to be always applicable to
CERCLA response actions. Pursuant to mandates in CERCLA section 111(c)(6) and
SARA section 126, the Department of Labor has promulgated regulations that
apply directly to worker safety during hazardous waste operations and
emergency response actions, including CERCLA actions:
(a)... (1) Scope. This section covers the following operations
...: (i) Clean-up operations required by a governmental body, whether
federal, state, local or other involving hazardous substances that are
start 55 FR 8680
conducted at uncontrolled hazardous waste sites (includinc[i_j3u^jiot
limitec^^Oj_^he_JijPA^s_^ationa^^riorit^^is^_^NPL^, state priority list
sites, sites_^ecoramende^^or_^he_^^^PL, and initia^^nvestic[ations_of
20vernmen^^dentifie^_sites_^hic^^re_conducte^^efore_^he_^resence_or
absence_of_Jiazardous_substance_Jias_j3ee]^^scertained.
29 CFR 1910.120 (emphasis added). Thus, these regulations apply specifically
to the response actions detailed in the NCP, and compliance with these
standards is properly required in the text of ' 300.150.
Other OSHA standards, however, are of general applicability and were not
developed specifically for CERCLA response actions (e.g., OSHA Construction
standards, Shipyard standards, Longshoring standards, etc.). EPA believes
that these general OSHA standards are essentially workplace standards,
designed to cover occupational exposures; they are properly viewed as
requirements of a "federal environmental law," and thus do not come within the
scope of ARARs under CERCLA section 121(d)(2). Rather, like the requirements
of other non-environmental laws, such requirements would apply of their own
force, not through the CERCLA process. Thus, OSHA standards are no longer
included on the list of potential ARARs. The final NCP package (' 300.150)
has been modified to reflect this approach, which EPA believes is consistent
with both OSHA and CERCLA.
CERCLA section 121(d)(2) defines potential ARARs as the standards,
requirements, criteria or limitations under "any Federal environmental law."
Note that the 1985 NCP -- which did consider OSHA requirements to be ARARs --
defined ARARs as "requirements of Federal public health and environmental
laws . "
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EPA does not believe that these changes will reduce compliance with OSHA
standards at Superfund sites. The OSHA standards for response action workers
will be met at every CERCLA site, and the more general OSHA standards will
continue be met where they apply.
EPA notes that there are some standards in OSHA that set contaminant
levels for the workplace (see 29 CFR Part 1910, Subpart Z, limitations on
exposure to toxic and hazardous substances) that may also be relevant --
although not applicable -- to the determination of a cleanup level at a CERCLA
site (due to the absence of other standards). In such a case, those standards
may be included among the requirements "To Be Considered" (TBCs).
In addition, the following changes were also made to proposed ' 300.150.
The statement that "the OSH Act requirements can be enforced, as appropriate,
by the relevant federal or state agencies," has been removed from the final
rule; although the statement is correct, it is more appropriate for a preamble
discussion. Further on this point, EPA notes that although OSHA standards
apply to the federal government by Executive Order, they are not independently
enforceable against the federal government; accordingly, NCP ' 300.150(c) has
also been revised to state that the lead agency should make OSHA programs
available to response action employees, consistent with and to the extent
required by 29 U.S.C. section 1910.120.
The revisions to this section do not reflect any reduced commitment for
compliance with applicable safety and health requirements, or any reduced
responsibility for private employers to comply with worker protection
standards.
Final rule: Proposed ' 300.150 has been revised to read as follows:
(a) Response actions under the NCP will comply with the
provisions for response action worker safety and health in 29 CFR
1910.120.
(b) In a response action taken by a responsible party, the
responsible party must assure that an occupational safety and health
program consistent with 29 CFR 1910.120 is made available for the
protection of workers at the response site.
(c) In a response taken under the NCP by a lead agency, an
occupational safety and health program should be made available for the
protection of workers at the response site, consistent with, and to the
extent required by, 29 CFR 1910.120. Contracts relating to a response
action under the NCP should contain assurances that the contractor at
the response site will comply with this program and with any applicable
provisions of the OSH Act and state OSH laws.
Federal Emp. for Non-Smokers' Rights v. U.S., 446 F.Supp. 181 (D.D.C. 1978),
aff'd 598 F.2d 310 (D.C.Cir.), cert, denied, 444 U.S. 926.
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(d) When a state, or political subdivision of a state, without an
OSHA-approved state plan is the lead agency for response, the state or
political subdivision must comply with standards in 40 CFR Part 311,
promulgated by EPA pursuant to section 126(f) of SARA.
(e) Requirements, standards, and regulations of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) (OSH Act) and of
state laws with plans approved under section 18 of the OSH Act (state
OSH laws), not directly referenced in paragraphs (a) through (d) of this
section, must be complied with where applicable. Federal OSH Act
requirements include, among other things, Construction Standards (29 CFR
Part 1926), General Industry Standards (29 CFR Part 1910), and the
general duty requirement of section 5(a)(1) of the OSH Act (29 U.S.C.
654(a)(1)). No action by the lead agency with respect to response
activities under the NCP constitutes an exercise of statutory authority
within the meaning of section 4(b)(1) of the OSH Act. All governmental
agencies and private employers are directly responsible for the health
and safety of their own employees.
Name: Section 300.155. Public information and community relations.
Proposed rule: This section stated that OSCs/RPMs and community relations
personnel should ensure that all appropriate public and private interests are
kept informed when an incident occurs. This section also stated that an on-
scene news office be established to coordinate media relations and to issue
official federal information on an incident.
Response to comments: A commenter noted that there are three types of media
coverage during an emergency: Newspapers, radio, and television. The comment
suggested that television is most problematic to those responding to an
incident and that this section did not address how to coordinate a response
with televised coverage of the incident.
In response, EPA believes that the rule appropriately addresses the
responsibility to provide information about an incident. It is not necessary
or appropriate to include details in the NCP of different approaches to
different media. In a separate effort, however, the NRT is considering
additional guidance and support for incident-specific response teams in
implementing public information procedures.
Another commenter noted that the community relations requirements
referenced in ' 300.155 are all from Subpart E. The comment questioned
whether any community relations requirements, other than those specifically
stated in ' 300.155, apply to responses to discharges of oil.
In response, ' 300.155 appears in Subpart B, which is the basic
responsibility and organization for response which underlies the entire NCP,
thus including response to discharges of oil under Subpart D. The public
information and community relations requirements outlined in 300.155 are those
generally applicable to all responses, and generally sufficient for emergency
or relatively short term response actions such as those encountered in oil
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responses as covered in Subpart D. Responses under Subpart E, however,
include long term actions at hazardous waste sites, and for these, there are
specific and detailed requirements for community information and involvement
in decision-making over the course of a response which may include removal or
remedial actions carried out over a considerable period of time. These
community relations
start 55 FR 8681
provisions might be applicable in a long term cleanup that followed an
emergency release, hence the cross references linking the basic or minimal
requirement to the more detailed program which is mandatory for long term
responses, but optional for emergency or short term responses.
Final rule: EPA is promulgating the rule as proposed.
Name: Section 300.160. Documentation and cost recovery.
Proposed rule: Section 300.160 discusses the procedures for documentation of
cost recovery for a response action. Section 300.160(a) states that an
accurate accounting of federal, state or private-party costs incurred for
response actions can be supported with an OSC report as required by 300.165
for all major releases and Fund-financed removals. Section 300.160(c) states
that "Federal agencies are to make resources available, expend funds, or
participate in response to discharges and releases under their existing
authority," and adds, "The ultimate decision
as to the appropriateness of expending funds rests with the agency that is
held accountable for such expenditures" (53 FR 51490) . Section 300.160(d) is
a new section of the proposed NCP incorporating 1986 amendments to CERCLA that
state that responsible parties are liable for the costs of any health
assessment or health effects study conducted under the authority of CERCLA
section 104(i). In addition, the preamble to the proposed NCP discussion of
300.160(d) detailed the types of studies for which responsible parties are
held liable (53 FR 51402).
Response to comments: Several commenters requested that EPA elaborate in the
preamble discussion of ' 300.160 on what are "standard EPA procedures for cost
recovery" as stated in the proposed rule (53 FR 51490). One asked that EPA
propose a list of guidance documents for cost recovery procedures. Another
asked that EPA make available its list of standard cost-recovery procedures
for public comment. Another asked that EPA circumscribe cost recovery to
those studies which are determined to be appropriate or necessary. In a
related comment, one group asked that the NCP clarify the scope of costs
recoverable and recognize that OSC reports are a poor method of documenting
those costs. This commenter asked for clarification on the involvement of the
RRT or NRT in cost-recovery activities for remedial actions, and an
explanation given for their involvement. Another asked that ' 300.160(a)
apply to oil discharges.
Most comments summarized above requested discussion of procedures for and
staff participation in cost recovery that more properly belongs in EPA
guidance rather than in the NCP. The preamble to the proposed NCP discussion
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of section 300.160(d) detailed the kinds of studies that are eligible for cost
recovery. Including guidance documents in the NCP, or including information
normally reserved for these guidance documents, would produce an unwieldy NCP,
and require constant revision as Agency guidance and policy procedures change
over time. In addition, EPA is developing a regulation that will provide for
recovery of direct and indirect costs under CERCLA. That rulemaking will
address the comments summarized above.
Oil discharges are not included under the provisions of
300.160(a), but are referred, through ' 300.160(b), to
300.315, the documentation and cost recovery section of Subpart D. The cost
recovery and documentation processes for oil discharges are, by intent,
somewhat different from those for hazardous substance release responses.
Including oil discharges under the provisions of ' 300.160(a) would subject
them to conflicting cost recovery and documentation provisions. In addition,
oil spills are statutorily exempt from the provisions of CERCLA, and come
under the authority of the CWA.
One commenter stated that granting power to authorize expenditure of
federal funds to the agency responsible for the response action represented
preferential treatment for federal agencies who are PRPs that is not extended
to private parties.
In response, the purpose of ' 300.160 is to describe authority for
expenditures in cases where federal agencies assist in a non-federal response,
such as a coastal oil spill where no federal lands are affected. Their
activities may be a mix of activities which they are required to undertake
under their own authorities, and activities which they undertake as requested
in support of an OSC (or RPM). The latter activities may be reimbursed from
the Fund, later to be reclaimed from the potentially responsible party (PRP)
by the Fund-managing agency. The commenter appears to misinterpret this
section as applicable to situations when the federal agency is itself a PRP.
It is not. If a federal agency were participating in a response for which it
was the responsible party, no reimbursement from the Fund would be allowed.
These provisions are amply covered in the appropriate Fund-management
regulations. Thus, since there is no preferential treatment allowed or
inferred for federal agencies over non-federal PRPs, no change is necessary.
Final rule: Proposed ' 300.160 is revised as follows:
1. In ' 300.160(a) (2), the cross-reference to ' 300.165 in the last
sentence is modified.
2. Proposed ' 300.160(a) (3) is revised as follows (see preamble
discussion on ' 300.615 (notification)): "The lead agency shall make available
to the trustees of affected natural resources information and documentation
that can assist the trustees in the determination of actual or potential
natural resource injuries."
Name: Section 300.165. OSC reports.
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Existing rule: Section 300.40(a) of the existing NCP requires the OSC to
submit to the RRT a complete report on a response action within 60 days after
the conclusion of a response to a major discharge of oil, or a major hazardous
substance, pollutant or contaminant release, or when requested by the RRT.
Proposed rule: Proposed ' 300.165(a) required the submission of the OSC
report within 90 days (rather than 60 days) of the conclusion of the response
action or when requested by the RRT. Additionally, the RRT must review the
OSC report and forward a copy of the report with the RRT's comments to the NRT
within 30 days of receiving the OSC report.
Response to comments: Paragraph (a): A commenter recommended that OSC
reports be approved by EPA prior to distribution to the RRT. EPA notes in
response that the NCP deals with the distribution of OSC reports for the
purposes of the NRT/RRT/OSC national response system. The OSC reports may be
used for individual agencies' own management information purposes as well, but
a primary purpose of these reports is to allow prompt knowledge of lessons
learned, frank discussion of any problems, and timely and effective
consideration of improvements or cautions which need to be shared throughout
the system. Pre-screening by EPA (or other agency providing the OSC in
question) would impede the timeliness of such reports, and perhaps diminish
the immediacy of concerns which are intended to be conveyed to other
responders. Thus, no change has been made in response to this comment.
Another commenter recommended that the OSC distribute the OSC report to
the state representative to the RRT. This change is unnecessary. The state
representative to the RRT has access to
start 55 FR 8682
such reports through the mechanism set up by each RRT to make OSC reports
available to each member of the RRT. Therefore, the OSC would be duplicating
the mechanism already created. In addition, there is no apparent reason why
the state representatives should receive a copy of the OSC report directly
from the OSC while the other members of the RRT receive a copy from the RRT.
One commenter stated that the OSC report deadline is unworkable because
the vast differences between response actions and the degrees of complexity
that they may entail dictate that varying amounts of time may be needed to
complete an OSC report. Cost recovery actions, noted the commenter, may also
dictate a specific deadline for report submission. The commenter also stated
that the original intent of this requirement should be reexamined by the NRT
and the RRT. To address these problems, the commenter recommended that after-
action reports be required instead of OSC reports, and that no deadline for
these reports be imposed on the OSCs. For those actions which are of
significant size or nature, or at the request of the RRT or NRT, the commenter
recommended that the OSC/RPM submit an executive summary which addresses the
four existing requirements of the NCP. The commenter suggested that the
deadline for this summary should be determined by the NRT or the RRT
requesting it.
Recognizing that OSCs have extensive responsibilities and that response
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to discharges or releases is a higher priority than writing the OSC report,
EPA proposed to extend the deadline for submission of the report from 60 days
to 90 days after completion of the response. After considering the comments
on this proposal, EPA agrees with the commenter that even this deadline for
submission of the OSC report may be unworkable. Therefore, the final NCP now
requires submission of the report within one year of the completion of removal
actions or when requested by the RRT. EPA believes that the change provides
needed flexibility while ensuring that RRTs are able to get reports sooner, if
necessary. Although the deadline has been extended, EPA still expects that
OSC reports will be written as soon as practicable. Generally, for removals
of short duration (e.g., lasting less than 30 days), OSC reports should be
available within six months of completion of the removal action because there
is less to report.
EPA does not agree, however, that cost recovery actions need dictate the
deadline for submission or the contents of the report. The purpose of the OSC
report is to summarize the activities at the site and the lessons learned. It
should be similar to the executive summary described by the commenter except
that it should cover, briefly, all of the topics listed in ' 300.165(b).
Detailed information regarding day-to-day events may be found in the
administrative record, the pollution reports, the site log book, and the OSC
log book. At the completion of site activities, these information sources are
maintained in the site file at the regional office. In the event a detailed
review of site activities is necessary (e.g., for cost recovery purposes), the
information can be obtained through the regional office. The OSC report
should not attempt to include or duplicate all of this other information but
rather should reference and summarize it.
One commenter stated that EPA should broaden this section to apply to
situations other than "major" discharges or releases. In response, EPA does
not agree that OSC reports should be required for every action that responds
to a discharge or release. EPA notes, however, that ' 300.165 provides that
reports on response actions other than to major discharges or releases will be
submitted when requested by the RRT.
One commenter noted that it is unclear why ' 300.165 involves RPMs if it
is limited to removal actions. In response, RPMs are referenced in ' 300.165
because removal actions sometimes occur at NPL sites (e.g., a fire may have
started at a site where a remedial action is planned or is being conducted);
therefore, the RPM may actually submit the OSC report.
Paragraph (c) : A comment relating to ' 300.165(c) (1) (viii) noted that
in the case of a large spill the damage assessment process will continue
beyond the proposed 90-day time limit for submission of the OSC report.
Therefore, the commenter states that ' 300.165(c)(1)(viii) should include a
"qualifying statement" concerning natural resource damage assessment activity.
In response, EPA notes that the deadline for submitting OSC reports is now
one year. Moreover, the OSC report need only observe that damage assessment
activity is ongoing despite the conclusion of the response action. A
qualifying statement, therefore, is not necessary.
One commenter argued that the OSCs should not comment on natural
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resource injuries or trustee activities. The commenter believed that OSCs
lack expertise in natural resource fields and could inadvertently make
statements that might affect trustee efforts to recover damages through
litigation. The commenter wanted paragraphs (vii) and (viii) deleted from the
OSC report format in 300.165(c)(1). Another commenter stated that the phrase
"documentation shall be sufficient to provide... impacts and potential impacts
to the public health and welfare and the environment" seems to imply that
damage assessment is an OSC responsibility. The commenter argued that
responsibility for this complicated process should rest with the federal
trustees, not with the OSC. The commenter noted that this point should be
clarified in the NCP.
In response to the commenters that expressed concern that OSCs would be
commenting on natural resource injuries or conducting damage assessments of
natural resources, EPA believes that the commenter misinterpreted the intent
of this requirement. OSCs are simply documenting the notification to trustees
of natural resource damage or potential damage and then listing any activities
taken by the trustees at the site. EPA believes that it is an important
component of the report and does not believe the requirement should be
eliminated. However, EPA does find that the wording in '' 300.165(c)(1)(vii)
and (viii) may be misleading and has changed it in today's rule to more
accurately reflect the stated intent.
A comment relating to '' 300.165(c) (4) (iii) questioned if the OSC is
required to comment on plans developed by LEPCs and SERCs under section 303 of
SARA, and recommended that '' 300.165(c)(4)(iii) be amended
to make it clear that OSCs should only recommend changes if those plans are in
conflict with the OSC plans. In response, EPA believes that
300.165(c)(4)(iii) does not require review of all section 303 plans. The
subsection requires the OSC to make recommendations relating to the section
303 plans "as appropriate." Such recommendations are only appropriate if the
section 303 plans are inconsistent with the NCP, RCP or OSC plan since the OSC
is not authorized by any statute or regulation to review section 303 plans.
Accordingly, the recommended change seems unnecessary.
Final rule: Proposed ' 300.165 is revised as follows:
1. The first sentence of ' 300.165(a) has been changed from "Within 90
days after completion of removal activities...," to read: "Within one year
after completion of removal activities...."
2. Section 300.165(c)(1)(vii) has been changed to read: "Content and
time of notice to natural resource trustees
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start 55 FR 8683
relating injury or possible injury to natural resources."
3. Section 300.165(c) (1) (viii) has been changed to read: "Federal or
state trustee damage assessment activities and efforts to replace or restore
damaged natural resources."
Name: Section 300.170. Federal agency participation.
Proposed rule: Proposed ' 300.170 described general responsibilities of
federal agencies within the National Response System.
Response to comments: Under ' 300.170, a commenter requested clarification of
the responsibilities of federal agencies with respect to reporting of releases
of hazardous substances, as compared to pollutants, or contaminants or
discharges of oil, from facilities or vessels which are under their
jurisdiction or control. EPA has revised this section to clarify the
applicable reporting requirements.
Final rule: Proposed ' 300.170(c) is revised as follows:
1. Section 300.170(c) has been modified as follows: "All federal
agencies are responsible for reporting releases of hazardous substances from
facilities or vessels under their jurisdiction or control in accordance with
section 103 of CERCLA."
2. Section 300.170(d) has been added as follows: "(d) All federal
agencies are encouraged to report releases of pollutants or contaminants or
discharges of oil from vessels under their jurisdiction or control to the
NRC. "
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Name: Section 300.175 Federal agencies: additional responsibilities and
assistance.
Existing rule: 40 CFR 300.23. This section described federal agencies'
capabilities and expertise related to preparedness planning and response,
consistent with agency capabilities and legal authorities.
Proposed rule: The proposed revisions emphasized the leadership roles of EPA
and the USCG, added the Nuclear Regulatory Commission to the list of federal
agencies described, and revised and updated some the other agencies'
capabilities and expertise.
Response to comments: Paragraph (b): A commenter suggested adding language to
300.175(b) regarding the staffing and administration of the National
Response Center (NRC) by the USCG. It was also suggested to add to each of
the other agency's organizational roles, language concerning communication
procedures and specialized services and funding for NRC operations.
In response, EPA has added a description of the capabilities and
expertise of the NRC to ' 300.175(b)(15). EPA does not agree, however, that
it is necessary to add language regarding organizational roles, communication
procedures, etc., to the descriptions of the other federal agencies. Section
300.175 provides a brief generalized description of individual agency's
expertise in preparedness planning or response actions, consistent with their
legal authorities and capabilities. It is not meant to cover specific details
of completing these activities. Further, ' 300.125 has been revised to read:
"The Commandant, USCG, in conjunction with other NRT agencies, shall provide
the necessary personnel, communications, plotting facilities, and equipment
for the NRC." In addition, if specialized services are needed by a particular
agency, this, along with any appropriate funding, should be handled by a
memorandum of understanding.
A commenter recommended adding to ' 300.175(b) (1), a reference to the
Coast Guard's authority to enter into cooperative agreements pursuant to
section 311(c)(2)(H) of the CWA or section 104(d) of CERCLA. EPA has added
such language.
One commenter questioned whether entering into a contract or cooperative
agreement with the appropriate state in order to implement a response action
applies only to remedial actions. If not, the following statement is
recommended: "Coast Guard OSCs should be included in negotiating agreements
for emergency responses."
In response, provisions of Subpart B (and thus "negotiating agreements
or contracts for response actions") generally apply to both removal and
remedial actions; therefore, no change is necessary. As a practical matter,
in the timeframe of an emergency response, or urgent need for a removal
action, negotiating such an agreement for the particular event or place might
take more time than the immediate situation allowed. Generic standing
agreements for certain kinds of situations could be negotiated in advance. In
general, however, proper contingency planning can meet mutually satisfactory
emergency needs if state, local, and OSC plans show the same agreed-upon
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dispositions of resources and responsibilities and provide for appropriate
levels of decision-making covering various kinds of incidents.
Under ' 300.175(b)(3), it was recommended to add language to clarify EPA
responsibilities to address the immediate short-term evacuations that are
often the norm in hazardous chemical responses. EPA does not agree. This
appears to be a specific responsibility which would be best handled in a
Federal Emergency Management Agency (FEMA) policy or guidance document.
Under '' 300.175(b) (4) and b(5), one commenter requested clarification
of the specific responsibilities of Department of Defense and Department of
Energy OSCs concerning releases of hazardous substances, pollutants, and
contaminants, and discharges of oil. The responsibilities of OSCs from all
federal agencies are the same, as described in ' 300.120 and elsewhere in the
NCP.
One commenter suggested that language be added to
300.175(b) (4) to clarify that consistent with CERCLA section 120(e) (4) (A),
the EPA administrator has the ultimate authority with respect to selecting
remedial actions for DOD facilities on the NPL. While the suggested addition
is correct, EPA does not believe this section is the appropriate place for it.
This item will be adequately covered in Subpart K.
Another commenter suggested that EPA add language to
300.175(b) (4) to identify the availability of Army Explosive Ordinance
Demolition (EOD) units (for explosives, nerve agents, etc.). EPA believes
that access to this expertise is limited by DOD authorities and should not be
included.
Under ' 300.175(b) (7), a commenter suggested a change to add a reference
to the capabilities of the Department of Commerce (DOC) with respect to
National Marine Sanctuary ecosystems. EPA has made the suggested change.
Under ' 300.175(b)(9)(i), a commenter suggested a change to clarify the
responsibilities of the Fish and Wildlife Service. EPA agrees with the
suggested change.
Under ' 300.175(b) (10), a commenter recommended expanding the section to
describe the Department of Justice's (DOJ) role in litigation and the
information that DOJ needs to negotiate or pursue a court action. EPA does
not agree with the proposed change because the NCP is not the appropriate
document for this purpose.
Final rule: Proposed ' 300.175 is revised as follows:
1. The following sentence has been added to ' 300.175(b)(1): "The USCG
may enter into a contract or cooperative agreement with the appropriate state
in order to implement a response action."
2. Section 300.175(b)(7) has been changed to add a reference to the
National Marine Sanctuary ecosystems.
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3. Section 300.175(b)(9)(i) has been changed to read as follows: "Fish
and Wildlife Service: anadromous and certain other fishes and wildlife,
including endangered and threatened species, migratory birds, and certain
marine mammals; waters and wetlands;
start 55 FR 8684
contaminants affecting habitat resources; and laboratory research facilities."
4. Section 300.175(b)(15) has been added describing the capabilities and
expertise of the National Response Center.
Name: Section 300.180. State and local participation in response.
Proposed rule: This section described general responsibilities of state and
local governments for response activities.
Response to comments: Paragraphs (a) and (c): Under
300.180(a), a commenter suggested allowing each RRT to determine an
appropriate number of seats to assign to each state within its jurisdiction.
EPA disagrees with the suggested change. While it is recognized that states
may assign tasks to a number of different state agencies, it is imperative to
have one spokesperson for the state as the official representative on the RRT.
As many state representatives as desired may attend the RRT meetings. Under
300.180(a), a commenter recommended adding "OSC" in addition to RPM for
state-lead response actions. EPA agrees with the recommended change.
Another comment asked two questions: Under ' 300.180(c), what is meant
by facilities not subject to response actions under the NCP, and is this
section consistent with ' 300.3(a)(2). In response, EPA agrees that the two
cited sections should be consistent, and is revising the language in
300.180(c) to read: "For facilities not addressed under CERCLA..."
Paragraph (d): One commenter indicated that the NCP should enable
federal facilities to issue cooperative agreements to states to carry out
remedial investigation, feasibility study, remedial action and remedial design
activities. It was suggested that ' 300.180(d) be modified to provide for
this. EPA recognizes that federal agencies may cooperate with states in
completing federal facility response activities. This will be adequately
covered in Subpart K and does not need to be included in this section.
Paragraph (e): Under ' 300.180(e), a commenter recommended that state
and local public safety organization response efforts should be consistent
with containment and cleanup requirements in the NCP. EPA agrees and has made
the recommended change.
Final rule: Proposed ' 300.180 is revised as follows:
1. The first sentence of ' 300.180(c) is revised to read: "For
facilities not addressed under CERCLA...."
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2. Section 300.180(e) has been changed as follows: "Because state and
local public safety organizations would normally be the first government
representatives at the scene of a discharge or release, they are expected to
initiate public safety measures that are necessary to protect public health
and welfare and that are consistent with containment and cleanup requirements
in the NCP, and are responsible for directing evacuations pursuant to existing
state or local procedures."
Name: Section 300.185. Nongovernmental participation.
Proposed rule: Proposed ' 300.185, based on existing ' 300.25, encouraged
involvement by industry groups, academic organizations and others in response
operations. This section also specified that contingency plans should provide
for the direction of volunteers by the OSC or other federal, state or local
officials.
Response to comments: A commenter suggested changing ' 300.185 so that the
OSC/RPM does not have the discretion to involve volunteers in on-site
activities associated with hazardous substance response operations. EPA
disagrees with this suggestion. This section provides adequate safeguards for
the use of volunteer personnel, including restrictions from on-scene
operations as necessary.
A change was suggested to make this section consistent with the
authority of the scientific support coordinator (SSC) as stated in
300.145(d)(2). EPA agrees and has made the change.
A commenter requested that the NCP further define strategies for dealing
with cases involving multiple authorities. EPA disagrees with the recommended
change. The situations involving multiple jurisdictions and authorities
should be handled under the appropriate contingency plan, i.e., the RCP or OSC
plan.
Final rule: The last sentence of proposed ' 300.185(b) has been changed to
read as follows: "The SSC may act as liaison between the OSC/RPM and such
interested organizations."
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SUBPART C — PLANNING AND PREPAREDNESS
Historically, the NCP has provided for federal planning and coordination
entities and for federal contingency plans. Although there has previously
been no federal requirement for state and local planning, the NCP has always
provided for coordination with such entities and plans where they exist.
However, SARA Title III now requires the development of a state and local
planning structure and local emergency response plans.
Title III provides the mechanism for citizen and local government access
to information concerning potential chemical hazards present in their
communities. This information includes requirements for the submission of
emergency planning information, material safety data sheets and emergency and
hazardous chemical inventory forms to state and local governments, and for the
submission of toxic chemical release forms to the EPA. Title III also
contains general provisions concerning local emergency response plans to be
developed by local emergency planning committees (LEPCs), emergency training,
review of emergency systems, trade secret protection, providing public access
to information, enforcement, and citizen suits. Regulations implementing
Title III are codified at 40 CFR Subchapter J. EPA will reference Title III
and these regulations in Subpart C where appropriate.
The proposed NCP states that in developing OSC contingency plans, the
OSCs shall coordinate with State Emergency Response Commissions (SERCs) and
Local Emergency Planning Committees (LEPCs) affected by the OSC area of
responsibility. The OSC plans shall provide for a well coordinated response
that is integrated and compatible with all appropriate response plans of
state, local and other non-federal entities, and especially with Title III
local emergency response plans.
The following sections discuss comments received on the proposed Subpart
C and EPA's responses.
Name: Section 300.200. General.
Existing rule: Subpart D - Plans (' 300.41). Subpart D of the 1985 NCP
required that, in addition to the National Contingency Plan (NCP), a federal
regional plan be developed for each standard federal region, Alaska, and the
Caribbean, and, where practicable, a federal local (i.e., OSC) plan also be
developed. The purpose of these plans is coordination of a timely, effective
response by various federal agencies and other organizations to discharges of
oil and releases of hazardous substances, pollutants and contaminants in order
to protect public health, welfare, and the environment.
Proposed rule: The equivalent section to Subpart D in the 1985 NCP, is found
in Subpart C of today's rule. This subpart summarizes emergency preparedness
activities relating to oil, hazardous substances, pollutants and contaminants;
describes the federal, state, and local planning structure; provides for three
levels of federal
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start 55 FR 8685
contingency plans; and cross-references state and local emergency preparedness
activities under SARA Title III.
Response to comments: A commenter stated that the planning activities
referred to in Subpart C apply to both oil and hazardous substances response
activities, not to "hazardous chemicals and substances only" as provided in
the proposed rule. EPA agrees with this commenter. As stated in the 1985
NCP, all federal, state, and local contingency plans must deal with emergency
preparedness and response activities related to discharges of oil and releases
of hazardous substances, pollutants, or contaminants.
Final rule: Section 300.200 is revised to read, "This subpart summarizes
emergency preparedness activities relating to discharges of oil and releases
of hazardous substances, pollutants, or contaminants..."
Name: Section 300.205. Planning and coordination structure.
Proposed rule: The SERC in each state is to establish local planning
districts, appoint LEPCs, and supervise/coordinate their activities. The SERC
must also establish information management procedures and appoint an
individual to serve as the coordinator for the information.
Response to comments: A few commenters suggested that
300.205(c) make reference to ' 300.115(h) to ensure coordination of the RRT
with the SERC. Section 300.205(b) references
300.115 as the description of the RRT's responsibilities. Section
300.115(h) states that the state's RRT representative should coordinate with
the SERC. Since it has already been stipulated that the RRT as part of their
responsibility coordinate with the SERC, there is no need to reiterate that
statement in
' 300.205(c) .
Final rule: EPA is promulgating the rule as proposed.
Name: Section 300.210. Federal contingency plans.
Proposed rule: This section describes the three levels of federal contingency
plans and makes reference to Title III plans. See also general description in
introduction above.
Response to comments: 1. SARA Title III. Several commenters suggested that
all references to SARA Title III should be eliminated from the NCP in that
SARA Title III establishes new, completely separate requirements to report to
state and local emergency planning officials, which are totally unrelated to
the CERCLA process. Another commenter, however, supported the complete
incorporation and integration of Title III provisions with other notification,
spill prevention and preparedness sections in the NCP. One commenter
recommended that EPA make a clear distinction between the NCP preparedness
activities and Title III requirements.
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A major objective of both the NCP and SARA Title III is to increase
public protection by developing response plans to deal with releases of oil
and hazardous substances to the environment. Eliminating from the NCP all
references to SARA Title III could lead to duplication of effort by federal,
state and local governments regarding contingency planning. It could also
cause confusion because the NCP would not provide a complete picture of the
federal/state/local planning structure.
2. Clarification of coordination procedures. Some comments stated that
the NCP should be revised to include procedures for coordinating emergency
response planning amongst LEPCs, OSCs, RRTs and the NRT. EPA has considered
this comment and is not including such language in the final rule. The NCP is
not intended to be a detailed procedural guidance document and such
coordination should be left to the discretion of the coordinating parties to
provide greatest flexibility to address regional, state and local variations.
Other guidance on planning and plan coordination is available, e.g.
"Hazardous Materials Emergency Planning Guide," National Response Team, NRT-1
(March 1987), "Criteria for Review of Hazardous Materials Emergency Plans,"
National Response Team, NRT-1A (May 1988) and "Technical Guidance for Hazards
Analysis," EPA, DOT and FEMA (December 1987), through the National Response
Team (NRT) member agencies.
3. Natural resources trustees and POD and DOE OSCs. A few commenters
suggested that ' 300.210 be expanded to require that natural resources
trustees and DOD and DOE OSCs be identified. Section 300.210 states that
"RCPs [Regional Contingency Plans] shall follow the format of the NCP and
coordinate with state emergency response plans, OSC contingency plans, ..."
The NCP and OSC contingency plans stipulate that the trustees of natural
resources, as well as DOD and DOE OSCs, should be identified. Therefore there
is no need to further state that in ' 300.210.
4. OSC jurisdictional boundaries. Another commenter stated that
determining the OSC jurisdictional boundaries based on Title III district
boundaries is not appropriate. EPA agrees. The language in the proposed NCP
reads that "jurisdictional boundaries of local emergency planning districts .
. . shall, as appropriate be considered in determining OSC areas of
responsibilities." Thus, the proposed NCP does not require the OSC
jurisdictions to be based on Title III local planning district boundaries, and
there will be no change in the final rule.
5. Coordination of RRT, OSC and LEPC plans. A few commenters feel that
it would be burdensome for RRTs or OSCs to coordinate their plans with the
Title III local emergency response plans. They feel the drafters of Title III
local emergency response plans should ensure that their plans coordinate with
the OSC and RRT plans.
Other commenters recommended that the RRT be encouraged to advertise the
availability of copies of the RCP to local emergency planning committees. One
commenter suggested that the state should ensure the coordination of local
plans with the OSC plan. Another stated that the NCP should be revised to
indicated that drafters of Title III local plans should coordinate their plans
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with federal plans, not the other way around. Finally, another commenter
noted that, for consistency, procedures for a LEPC to submit a plan to the RRT
for review should be included in
300.215(d), and that these procedures should require submission through the
SERC.
EPA considers the coordination of the OSC plans with the Title III plans
to be important. OSCs must be knowledgeable of local response groups and
their response capabilities in order to prepare reliable and useful plans and
to respond to incidents in their districts. The jurisdiction of some OSCs may
include several Title III local planning districts, and the OSCs must ensure
that their plans do not conflict with, but complement the Title III plans. A
few people commented that language should be added proposing that the Title
III local planning committees coordinate their plans with those of the OSCs.
Section 300.215(a) already includes such language.
EPA also believes that the coordination through the SERC of regional
plans with the Title III plans, to the greatest extent possible, is
fundamental to the planning process.
Final rule: Proposed ' 300.210(b) is changed to add the following sentence
before the last sentence: "Such coordination should be accomplished by
working with the SERCs in the region covered by the RCP."
Name: Section 300.215. Title III local emergency response plans.
Proposed rule: See general description in introduction above.
start 55 FR 8686
Response to comments: A commenter stated that ' 300.215 should be revised to
include comments regarding non-catastrophic event response. EPA disagrees
with this commenter since Title III addresses all releases, catastrophic as
well as non-catastrophic. Section 304 of Title III requires the reporting of
a releases in excess of a reportable quantity of a extremely hazardous
substance or a CERCLA hazardous substance to the SERC, LEPC, and the NRC(where
appropriate). These federal, state, and local officials will then respond to
that report as appropriate.
Another commenter suggested that ' 300.215 should be expanded to include
procedures for a LEPC to submit a plan to the RRT for review. EPA has
considered this comment and is making a revision in the final rule.
Final rule: Proposed ' 300.215 is revised as follows:
1. Section 300.215(d) is revised to add the following last sentence:
"This request should be made by the LEPC, through the SERC and the state
representative on the RRT."
2. In the first sentence of ' 300.215(e) (2), the phrase "to the SERC,
LEPC and the local fire department" has been added.
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Name: Indian tribes under Title III.
Proposed rule: The preamble to proposed Subpart A stated that EPA is
proposing to include Indian tribes in the definition of "state," except for
purposes of Title III, or where specifically noted in the NCP.
Response to comments: Several commenters disagreed with excluding Indian
tribes from being treated like states under Title III. These commenters
encouraged EPA to allow tribal participation in this program because if the
tribes do not become involved as governments in emergency response planning,
the potential for harm to the reservation population and environment
increases. These commenters also mentioned that EPA should allow tribes to
participate as governments in Title III programs because tribes can be an
important link in emergency planning and could be important in planning the
appropriate response actions. These commenters recommended that EPA use its
discretion to allow tribal participation under Title III on a government-to-
government basis. Indian tribes wishing to develop local planning structure
and local emergency response plans should be allowed to participate in Title
III planning on the same basis as states.
In response, EPA notes that on March 29, 1989 (54 FR 12992), EPA
proposed that Indian tribes be the designated implementing authority for Title
III on all lands within "Indian country" as defined in 15 U.S.C. 1151. When
this proposed rule becomes final, Indian tribes will, by rule, be included in
the definition of "state" for the purposes of Title III.
Final rule: There is no rule language on this issue.
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SUBPART D — OPERATIONAL RESPONSE PHASES FOR OIL REMOVAL
Subpart D contains only minor revisions to the existing Subpart E. The
following sections discuss comments received on the proposed Subpart D and
EPA's responses.
Name: Section 300.300. Phase I -- Discovery or notification.
Proposed rule: This section describes the ways in which an oil discharge may
be discovered and requires that reports of all discharges be made to the NRC.
Alternative notification to the appropriate USCG or EPA predesignated OSC or
the nearest USCG unit is permitted if immediate notification to the NRC is not
practicable. This section also requires that immediate notification to the
NRC be included in regional and local contingency plans. Upon notification of
an oil discharge, the NRC must promptly notify the OSC who, in turn, will
proceed with the additional response phases outlined in this subpart.
Response to comments: One commenter asserted that the addition of the EPA
predesignated OSC as a contact through the regional 24-hour emergency response
telephone number is unnecessary and should be deleted. The commenter went on
to say that a single, all encompassing notification system must be established
in the NCP so the federal government can be efficient and effective in its
response actions. The concept of a single point of contact for reporting all
environmental incidents throughout the United States is well established under
the FWPCA and CERCLA. According to this commenter, with one telephonic
notification to the NRC, many responsible parties fulfill several federal
regulatory reporting requirements. If a responsible party can telephonically
call EPA's 24-hour emergency number, then why can they not simply call the
NRC. The requirement to call EPA's 24-hour number simply confuses and
complicates the reporting requirements.
While EPA agrees that there should be a single notification system for
discharges of oil, EPA believes that it is important to make available
reasonable alternatives for reporting oil spills that are limited to the rare
circumstances where it is not possible to contact the NRC. Furthermore, it is
the opinion of EPA that the condition, "if direct reporting to the NRC is not
practicable," is not ambiguous. It should be emphasized that reporting to the
USCG or EPA predesignated OSCs or the 24-hour EPA regional emergency response
telephone number are interim measures, and all reports shall be promptly
relayed to the NRC by the discharger.
One commenter recommended that the "notification" language used in
Subpart D for Oil Removal (300.300 and in Subpart E for Hazardous Substance
Response (300.405)) should be identical asserting that this will limit
confusion and make reporting of incidents that are both oil and hazardous
substance simple. The commenter added that there is no need for the oil
industry to determine, before notification, whether a spill will be
interpreted to fall within the petroleum exclusion and recommended new
language for '' 300.300 and 300.405. Another commenter recommended rewriting
the Discovery or notification section to accurately reflect the notification
requirements for different types of discharges as mandated by statute adding
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that the procedures that the NRC and OSC must follow should be separate from
the requirements of the discharger so not to confuse the reader.
EPA believes that the notification provisions of Subparts D and E, as
proposed, are consistent except for necessary differences driven by statutory
and programmatic requirements. EPA also believes that the concept of a single
point of contact for reporting all oil and hazardous substance spills is
preserved. Therefore, in today's final regulation, ' 300.300 remains largely
unchanged from the proposed rule.
Final rule: The last two sentences in ' 300.300(b) are revised as follows
(see discussion in preamble section on ' 300.125 on editorial revision to
300.300(b)): "If it is not possible to notify the NRC or predesignated OSC
immediately, reports may be made to the nearest Coast Guard unit. In any
event, such person in charge of the vessel or facility shall notify the NRC as
soon as possible."
Name: Section 300.305. Phase II -- Preliminary assessment and initiation of
action.
Final rule: Proposed ' 300.305(d) is revised as follows (see preamble section
on ' 300.615 (notification) ) :
start 55 FR 8687
"If natural resources are or may be injured by the discharge, the OSC shall
ensure that state and federal trustees of affected natural resources are
promptly notified in order that the trustees may initiate appropriate actions,
including those identified in Subpart G. The OSC shall seek to coordinate
assessments, evaluations, investigations, and planning with state and federal
trustees."
Name: Section 300.310. Phase III -- Containment, countermeasures, cleanup
and disposal.
Proposed rule: This section requires that the OSC initiate defensive actions
as soon as possible to prevent, minimize, or mitigate the threat to the public
health or welfare or the environment. These actions may include controlling
the source of the discharge; initiating salvage operations; deployment of
physical barriers to deter the spread of the oil; and the use of chemical or
biological countermeasures in accordance with Subpart J, to restrain the
spread of the oil and mitigate its effects. This section directs the OSC to
choose oil spill recovery and mitigation methods that are most consistent with
protecting the public health and welfare and the environment. Sinking agents
are specifically prohibited. This section requires that recovered oil and
contaminated materials be disposed of in accordance with federal regional and
local contingency plans.
Response to comments: A commenter noted that ' 300.310(c) states that "oil
and contaminated materials recovered in cleanup operations shall be disposed
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of in accordance with the RCP and OSC contingency plan and any applicable
laws, regulations, or requirements." If the purpose of this paragraph is to
require that the disposal of cleanup materials meet applicable or relevant and
appropriate requirements (ARARs), the commenter recommended that ARARs should
be substituted for "applicable laws, regulations, or requirements". Language
similar to ' 300.400(g) should then be added to aid in the identification of
ARARs for oil removal.
The purpose of this paragraph is not to require that the disposal of
oil-contaminated cleanup materials meet ARARs. Language that could be
interpreted to the contrary inadvertently appeared in the preamble to the
proposed regulation. ARARs, as required by CERCLA section 121, apply to
remedial actions responding to releases of hazardous substances, the
definition of which excludes "oil." CERCLA sections 101(14) and 101(33). The
response to oil discharges is provided by section 311 of the Clean Water Act.
Final rule: EPA is promulgating ' 300.310 as proposed.
Name: Section 300.315. Phase IV -- Documentation and cost recovery.
Proposed rule: This section requires the collection and maintenance of
documentation to support actions taken under the CWA and to form the basis for
cost recovery.
Final rule: Proposed ' 300.315 is revised as follows:
1. The cross-references to the USCG Marine Safety Manual and 33 CFR Part
153 in the last sentence of ' 300.315(a) are modified.
2. The following sentence is added to proposed
300.315(c)(see preamble discussion on ' 300.615)): "The OSC shall make
available to trustees of the affected natural resources information and
documentation that can assist the trustees in the determination of actual or
potential damages to natural resources."
Name: Section 300.320. General pattern of response.
Proposed rule: This section describes, in general, the actions to be taken
when a report of a discharge is received.
Final rule: The phrase "rehabilitating or acquiring the equivalent of..." has
been added to ' 300.320(b)(3)(iii) in order to be consistent with CWA section
311(f)(5).
Name: Section 300.330. Wildlife conservation.
Proposed rule: This section describes coordination of professional and
volunteer groups to participate in waterfowl dispersal, collection, cleaning,
rehabilitation and recovery activities.
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Response to comments: A commenter suggested that the more encompassing term
"wildlife" be used in this section rather than "waterfowl." EPA agrees and
has made the change.
Final rule: EPA has revised proposed ' 300.330 to use the term "wildlife"
rather than "waterfowl."
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SUBPART E — HAZARDOUS SUBSTANCE RESPONSE
The Hazardous Substance Response subpart contains a detailed plan
covering the entire range of authorized activities involved in abating and
remedying releases or threats of releases of hazardous substances, pollutants,
or contaminants. EPA is making major revisions to the hazardous substance
response authorities included in the NCP. The revisions implement the 1986
amendments to CERCLA and incorporate additional requirements deemed necessary
and appropriate based on EPA's management of the Superfund program. The NCP
reorganizes the sections of the subpart to coincide with the general order of
established procedures during response.
Specifically, EPA is expanding current ' 300.62 on the state role into a
separate subpart (new Subpart F), which incorporates the new state involvement
regulations; the entire discussion now appears after Subpart E. EPA is also
revising and reformatting current ' 300.67 on community relations so that it
is no longer a separate section but is incorporated into the other sections as
appropriate. Furthermore, EPA is renaming and reorganizing the sections in
Subpart E as follows:
300.400 General.
300.405 Discovery or notification.
300.410 Removal site evaluation.
300.415 Removal action.
300.420 Remedial site evaluation.
300.425 Establishing remedial priorities.
300.430 Remedial investigation/feasibility study (RI/FS)
and selection of remedy.
300.435 Remedial design/remedial action, operation and
maintenance.
The following sections discuss major comments received on the proposed
Subpart E and EPA's responses. Responses to other comments are included in
the support document to the NCP.
SECTION 300.400. General.
Name: Section 300.400(d)(3). Designating PRPs as access representatives.
Section 300.400(d)(4)(i). Administrative orders for entry and access.
Proposed rule: Section 300.400(d)(4)(i) provides that EPA or any appropriate
federal agency, by the authority granted them in CERCLA section 104(e)(5), can
issue an administrative order to secure entry and access to a site where the
site owner does not give consent to entry or access. Section 300.400(d)(3)
adds language that allows EPA to designate a PRP as its representative solely
for the purpose of access, through CERCLA section 104(e), but only in cases
where the PRP is conducting a response action pursuant to an administrative
order or consent decree. This does not create liability in the federal
government or limit EPA's right to ensure a proper remedial investigation/
feasibility study (RI/FS).
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Response to comments: Most commenters expressed support
300.400(d)(3), authorizing the agency to designate a PRP
for access to a site, and concurred that such
for
as its
representative
start 55 FR 8688
designation would help ensure cooperative PRPs access to a site owned or
operated by a recalcitrant PRP. Disparate comments were received on
300.400(d)(4)(i). EPA received comments stating that PRPs should be provided
access to Fund-lead and state-lead sites to allow them to conduct their own
testing and sampling in order to respond knowledgeably to an EPA remedial
action proposal or to prepare an adequate defense. One commenter suggested
that PRPs should be afforded the same unrestricted access to a site that is
afforded the lead agency. Another suggested that entry and access should be
afforded any PRP that voluntarily conducts a response action, and not be
contingent upon the PRP entering into a consent order or decree. A third
suggested that the NCP distinguish between entry and access to abandoned
hazardous waste sites and sites with active, operating businesses. They
proposed limitations on entry and access by a lead agency and on the lead
agency's ability to grant others entry and access to such ongoing commercial
sites to prevent major disruptions of business. A final commenter proposed
that DOD, as lead agency, should be granted the authority to deny state agents
access to DOD vessels.
EPA opposes unrestricted access to a site by PRPs for several reasons.
Unsupervised access, sampling and testing would present a potential health
hazard to those on the site or residing near it. Unrestricted access could
slow cleanup by disrupting authorized on-site activities. EPA further believes
that the proper opportunity for access and sampling is afforded when PRPs are
given the chance to conduct the RI/FS. Finally, a great deal of information
about the site is already made available to PRPs and others through the
administrative record for the site.
The statute makes no distinction between entry and access at abandoned
sites and sites of operating businesses in conducting response actions.
Protecting human health and the environment is EPA's first priority when it
gains access to a site. Protecting private commercial and industrial
enterprises from interruption may also be considered in certain circumstances
where there is no effect on EPA's accomplishment of its primary purpose to
protect human health and the environment. EPA has clarified this section,
however, to make it clear that one or more PRPs, including representatives,
employees, agents and contractors of PRPs may be designated as the lead
agency's representative. EPA has also clarified that EPA or the appropriate
federal agency may request the Attorney General to commence a civil action to
compel compliance with a request or order for access.
Finally, the statute does not recognize the "uniqueness" of DOD's
authority as a lead agency when granting site entry and access to any "state
or political subdivision under contract or cooperative agreement" with EPA
under CERCLA section 104(e)(1). Of course, the President may issue site-
specific orders under CERCLA section 120(j) regarding response actions at
Department of Defense or Energy facilities as necessary to protect national
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security.
Final rule: Proposed ' 300.400(d) is revised as follows:
1. The language in proposed ' 300.400(d)(2)(ii) on where the authority
to enter applies is reordered.
2. Proposed ' 300.400(d)(3) is revised to clarify that one or more PRPs,
including representatives, employees, agents and contractors of PRPs, may be
designated as the lead agency's representative.
3. Proposed ' 300.400(d)(4)(i) is revised to state that EPA or the
appropriate federal agency may request the Attorney General to commence a
civil action to compel compliance with a request or order for access. Also,
the phrase "or if consent is conditioned in any manner" is added to this
section.
Name: Sections 300.5 and 300.400(e). Definition of on-site.
Proposed rule: Section 300.400(e) states that the term "on-site" for
permitting purposes shall include the areal extent of contamination and all
suitable areas in very close proximity to the contamination necessary for
implementation of the response action.
Response to comments: 1. Definition of on-site. Many commenters supported
the proposed definition of on-site because it ensures flexibility in the
design and construction of response actions, provides for expeditious cleanup
of sites, and potentially provides significant cost savings. The commenters
believed that the four alternative definitions described in the preamble were
too restrictive and imposed various constraints on EPA that would delay and
needlessly complicate actions at sites. One commenter noted that the RI/FS
process, including the mandatory public participation aspects, is the
functional equivalent of the permitting process. Another commenter requested
that the permit waiver in existing NCP ' 300.68 for actions under CERCLA
section 106 be retained.
Other commenters generally supported the proposed definition but
requested some modifications. Several questioned using "very" in the
requirement that suitable areas adjacent to the site be in very close
proximity to the contamination. Some suggested in its place the phrase
"...which are both as close as practical to the contamination..." One
commenter assumed that EPA was trying to establish a principle of practical
effectiveness, i.e., that the area of contamination and the area in which
response activities occur are sufficiently related in practice that they
should be treated as one site under the permit exemption. This commenter
requested further elaboration on this.
One commenter requested that the term "areal" be clarified to
distinguish surface area from the atmosphere. Another requested that the
definition should specifically mention that the permit exemption applies
during investigations as well as implementation of the response action.
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One commenter urged that the permit exemption not be applied to
construction of new disposal units in previously uncontaminated areas. The
commenter stated that it is good policy to discourage new units in
uncontaminated areas. Other commenters recommended that on-site should
include all areas affected by contamination, whether at a discrete location or
through transport of contaminated soils or ground-water plume migration.
Some commenters supported the alternative interpretations described in
the preamble to the proposed rule. Several commenters favored defining on-
site as identical to a CERCLA facility. One commenter stated that this
definition of on-site should provide that all treatment performed on-site
refers to the entire facility, and is not limited to the specific operating
unit or area of contamination. This commenter also recommended that the
permit exemption be broadened to induce private parties to voluntarily
implement the required CERCLA actions.
Another commenter favored defining on-site the same as CERCLA facility
because Congress intended to limit unpermitted activities to on-site areas,
not near-site areas. One commenter suggested combining the proposed
definition with the alternative definition equating on-site to CERCLA
facility. The commenter believed that this would be consistent with the use
of these words throughout the NCP and with the statutory definition of
facility.
One commenter protested that the scope of the proposed definition was
too broad and beyond statutory intent. This commenter contended that the
proposed
start 55 FR 8689
definition enabled EPA to unjustifiably usurp state permit laws. The
commenter requested that the definition of on-site be limited to the
contiguous area having the same legal ownership as the actual site of the
release but in no event should it extend beyond the areal extent of
contamination. The commenter also argued that the statute provides that the
permit exemption applies only after a remedy is selected in accordance with
section 121. The commenter also requested that if the proposed language in
300.400(e) (1) is retained, the language "on-site... shall include..." should be
modified to read "on-site... means." The commenter believed that the proposed
language was over-expansive.
Another commenter generally supported the proposed definition but
requested that EPA clarify that the scope of "on-site" for permitting purposes
can differ from the geographical area covered by the affected site. The
commenter stated that the scope of the affected site for purposes other than
permitting is limited to the property owned or controlled by the site owner or
operator in almost all situations. The commenter was concerned that too broad
an interpretation of the affected site could effectively limit the value,
transferability and use of adjacent property.
One commenter requested clarification on the applicability of the on-
site permit exemption to all classes of non-NPL hazardous substance sites.
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The commenter also asked that the NCP clarify that the exemption does not
apply to RCRA permits and HSWA corrective action requirements for solid waste
management units.
In response, EPA believes that Congress intended to expedite cleanups
when it provided for the permit exemption in CERCLA. Requiring the Superfund
program to comply with both the administrative requirements of CERCLA and the
administrative and other nonsubstantive requirements of other laws would be
unnecessary, duplicative and would delay Superfund activities. Today's action
is consistent with that intent.
EPA disagrees with those commenters who assert that the definition of
"on-site" in the rule is unnecessarily broad. For practical reasons discussed
in the preamble to the proposed rule (53 FR 51406), on-site remedial actions
may, of necessity, involve limited areas of noncontaminated land; for
instance, an on-site treatment plant may need to be located above the plume or
simply outside the waste area itself. EPA does not believe that including in
the definition of on-site those areas "in very close proximity to the
contamination" and "necessary for implementation of the response, " is beyond
the intent of Congress, or that it would allow the permit exemption in section
121(e)(1) to be used for activities that are that fundamentally different in
nature from conventional on-site actions.
EPA believes that its proposed definition of on-site is sufficiently
narrow so that the permit exemption is not abused yet flexible enough to
provide for practical and expedient implementation of Superfund remedies.
Thus, EPA will promulgate the language as proposed, except that it will delete
the phrase "for permitting purposes" in order to make clear that the "on-site"
definition is also relevant to the definition of "off-site" under CERCLA
section 121(d)(3). EPA believes this change is necessary for the consistency
of the CERCLA program, and for the proper functioning of CERCLA section
121(d)(3). In addition, as suggested by a commenter, EPA will change the
language in ' 300.400(e)(1) to be consistent with the definition of
on-site in ' 300.5 so that both will read that "on-site means the areal extent
of contamination..." rather than "on-site includes...."
Proposed section 300.400(e) (1) states that the permit waiver applies to
all on-site actions conducted pursuant to CERCLA sections 104, 106, or 122; in
effect, this covers all CERCLA removal and remedial actions (all "response"
actions). However, a number of other federal agencies have inquired as to
whether this language would reach response actions conducted pursuant to
CERCLA sections 121 and 120. In response, EPA has made a non-substantive
clarification of the applicability of the permit waiver in CERCLA section
121(e)(1) to include on-site response actions conducted pursuant to CERCLA
sections 120 and 121.
The inclusion of actions conducted under CERCLA section 121 is basic,
and reflects a literal reading of the statutory provision itself ("No ...
permit shall be required ... where such remedial action is selected and
carried out in compliance with this_section") ; indeed, the inclusion in
section 300.400(e)(1) of sections 104, 106 and 122 is based in large part on
the fact that remedial actions carried out under section 104 or 106 authority
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were selected under section 121 (the inclusion of those sections also stems
from the reference to "removal actions" in CERCLA section 121(e)(1)). The
addition of CERCLA section 120 simply recognizes that the permit waiver
applies to federal facility cleanups conducted pursuant to CERCLA section
120(e), which are also selected and carried out in compliance with CERCLA
section 121 (see CERCLA section 120 (a) (2) ) .
In response to other comments, EPA intends that "areal" refers to both
surface areas and the air above the site. EPA further intends that the
exemption applies to all CERCLA activities, including investigations and
CERCLA section 106 actions, conducted entirely on-site, before and after the
remedy is selected. EPA generally agrees with the policy of not locating new
disposal units in uncontaminated land and will only do so when the only
practical method for reducing the risk posed by the contamination is to
construct a unit in very close proximity to the contamination. The example
described in the preamble to the proposed rule was contamination located in a
lowland marshy area. When it is not possible to locate an incinerator or
construction staging area in that marshy area, it may be located in an
uncontaminated upland area in very close proximity and still fall within the
exemption.
Commenters supporting the alternative definitions have not persuaded EPA
that they offer significant advantages over the proposed definition. As
stated in the preamble to the proposed rule, the problem with equating on-site
with the CERCLA definition of "facility" is that a CERCLA facility is limited
to the areas of contamination; it does not include adjacent areas necessary
for implementation of response activities. On the other hand, a "facility" as
defined under RCRA (i.e., the property boundaries) may be too expansive for
purposes of the permit exemption, as it may encompass many square miles, with
discrete areas of contamination rather than contamination throughout. EPA
believes that the permit exemption should not apply to activities at a site
not directly related to responding to the contamination. Alternatively, the
RCRA definition may be too narrow where the
start 55 FR 8690
contamination crosses property boundaries. Also, defining on-site as the area
EPA does not believe that the definition being promulgated today is
inconsistent with the statutory definition of "facility" in CERCLA section
101(9). First, Congress did not use the term facility, but rather used the
term "on-site," in CERCLA section 121(e)(1). Second, the definitions are not
in conflict; the on-site definition is simply broader in order to allow EPA to
effectuate the cleanup of "facilities" defined in the statute. (Note that the
size or extent of a facility listed on the NPL may be broader than the
description in the original NPL listing package, and may extend to those areas
where the contamination in question has "come to be located." See CERCLA
section 101(9); 54 FR at 41017-18 (October 4, 1989); 54 FR at 13298 (March 31,
1989); United States v. Conservation Chemical Co., 619 F. Supp 162, 177, 185
(W.D. Mo. 1985).)
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having the same legal ownership as the primary contaminated area may not be
useful when a ground-water plume has travelled a considerable distance away
from the source of contamination. As the preamble to the proposed rule noted,
such a definition may artificially constrain a remedy because the exemption
would be defined in terms of a property line rather than the contamination.
Finally, EPA believes that Congress intended that activities conducted
entirely on-site pursuant to CERCLA are exempt from all federal, state or
local permits, including permits under RCRA and HSWA. A RCRA permitting
requirement would present the same possibility of delay as any other permit.
This permit exemption does not apply, however, to cleanup actions conducted
under an authority other than CERCLA, such as RCRA or HSWA.
2. Noncontiguous facilities. The preamble to the proposed rule also
stated EPA's interpretation that when noncontiguous facilities are reasonably
close to one another and wastes at these sites are compatible for a selected
treatment or disposal approach, CERCLA section 104(d)(4) allows the lead
agency to treat these related facilities as one site for response purposes
and, therefore, allows the lead agency to manage waste transferred between
such noncontiguous facilities without having to obtain a permit (53 FR 51407).
EPA requested comment on whether to limit this approach to situations where
the noncontiguous facilities are under the ownership of the same entity.
Several comments were received on EPA's proposal on noncontiguous facilities.
Some commenters requested that this proposal be expanded to include
groups of sites that are not in close proximity to one another. One commenter
requested an expansion to encompass large federal facilities with several
discrete areas of contamination that are similar in nature but within
boundaries that are spatially separated.
In response, the preamble to the proposed rule noted it may be
appropriate to treat noncontiguous facilities as one site where the facilities
are "reasonably close to one another" and the wastes are "compatible for the
selected treatment or disposal approach" (53 FR 51407). However, the preamble
specifically noted that these two factors were merely "amonc[ the criteria" EPA
uses to decide whether noncontiguous facilities should be treated as one site.
In some cases, the distance between facilities may be the deciding factor; in
other cases, the consideration of distance may be outweighed by other
criteria. Moreover, the "reasonably close" language in the proposal leaves
room for Agency discretion; EPA recognizes that what may be a reasonable
distance under some circumstances (e.g., in a sparsely populated area) may be
less reasonable under others (e.g., in an urban setting). EPA makes these
assessments on a case-by-case basis. EPA does not believe that the policy
needs to be expanded in response to the comments on distance between areas of
contamination; rather, the comments indicate that the policy needs to be more
fully explained.
CERCLA section 104(d)(4) allows EPA broad discretion to treat
noncontiguous facilities as one site for the purpose of taking response
action. The only limitations prescribed by the statute are that the
facilities be reasonably related "on the basis of geography" or "on the basis
of the threat, or potential threat to the public health or welfare or the
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environment." Once the decision is made to treat two or more facilities as
one site, wastes from the several facilities could be managed in a coordinated
fashion at one of the facilities and still be an "on-site" action, within the
permit waiver of CERCLA section 121(e)(1).
In evaluating the appropriateness of aggregating two facilities, EPA
evaluates one or both of the statutory criteria. The threshold issue is
generally whether the two facilities are "related based on the threat posed,"
such that it makes sense under CERCLA to treat two or more contamination
problems as one; the criterion of "waste treatment compatibility," discussed
in the proposal, is one measure of this. For example, where wastes at two
CERCLA facilities are similar or identical, and are appropriate for like
treatment or disposal, it may be both protective of health and the environment
and cost-effective to treat the two facilities as one site, and to take a
coordinated response action. The treatment facility built on-site at the
first facility (which would not need a permit pursuant to CERCLA 121(e)(1))
could then accept wastes from other contaminated areas "on-site" -- i.e., from
the second facility -- without the need for a permit. This allows response
actions to proceed expeditiously and cost-effectively.
The analysis of whether facilities that are "related based on the threat
posed" should be aggregated may, in appropriate cases, also consider the
distance between the facilities, especially where transportation risks are
high (such as for highly volatile wastes or for transfers through heavily
populated areas), or where transportation costs would be high (calling into
question the cost-effectiveness of such an option).
Alternatively, EPA may consider whether the sites are "related based on
geography," e.g., noncontiguous CERCLA facilities may both represent
significant sources of contamination to a common ground-water aquifer or
surface water stream. Here again, factors such as the distance between the
facilities and the cost-effectiveness of the aggregated response may also be
appropriate for consideration.
In any analysis under section 104(d)(4), EPA also believes that it is
critical to consider the views of the affected state or states, as well as
those of the affected communities (especially those persons living near the
facility that would receive waste from other, noncontiguous facilities) .
Thus, EPA cannot precisely define what distance is appropriate for the
aggregation of noncontiguous facilities. EPA will evaluate, on a case-by-case
basis, the distance between facilities and the other factors discussed herein,
to decide whether it is appropriate to treat two noncontiguous facilities as
one under CERCLA section 104(d)(4).
Note that facilities may be aggregated for Fund-financed remedial response
(as compared to removal or enforcement response) only if both facilities have
been listed on the NPL. (See final rule section 300.425(b)(1).)
Note that as a matter of policy, and due in part to special provisions in
the Hazard Ranking System model (e.g., the three mile radius evaluation area),
EPA applies more restrictive criteria to potential site aggregations for the
purposes of NPL listings (see 48 FR 40663, Sept. 8, 1983).
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Another commenter recommended that the proposal be broadened to cover
areas needed for transportation, storage, and/or treatment at centralized
locations on an installation where similar removal or remedial actions can be
taken at more than one site.
In response, the authority to treat two noncontiguous facilities as one
site is limited under section 104(d)(4) to CERCLA facilities (a "facility," as
defined in CERCLA section 101(9), is generally "any site or area where a
hazardous substance has ... come to be located"); thus, to the extent that
the commenter was suggesting that a centralized location that is not a CERCLA
facility may be aggregated with noncontiguous CERCLA facilities, EPA
disagrees. Such an approach would go beyond the terms of section 104(d)(4),
and would result in an improper
start 55 FR 8691
expansion of the permit waiver for CERCLA actions conducted "entirely on-
site." If a party wishes to establish a treatment or disposal facility at a
location that is not within EPA's definition of on-site, it may do so, but it
must secure the appropriate permits.
Many comments were received on the option of limiting application of
section 104(d)(4) to facilities that are under common ownership. Some
commenters objected to aggregating facilities of different ownership because
of liability problems. They noted that PRPs at one site could be liable for
the entire amount of response costs at the site where on-site activity occurs.
A commenter stated that common ownership may lessen some of these legal
concerns. One commenter recommended that EPA grant PRPs releases from
liability with respect to sites where they did not send CERCLA substances, or
that PRP consent will be obtained, before the lead agency employs centralized
treatment. Another stated that extending this aggregation concept to
facilities with different owners would, in effect, allow Superfund sites to
take the place of permitted waste management facilities and goes far beyond
the scope of the permit exemption.
Other commenters believed that applying CERCLA section 104(d)(4) to
facilities of multiple ownership was acceptable. One commenter stated that
EPA should treat noncontiguous sites as one site when the properties are owned
by the same entity or owned by separate entities that agree to the
arrangement. Some commenters supported multiple ownership but took note of
the liability problem. One opined that EPA does not have the authority to
make PRPs at noncontiguous sites responsible for activities at another site.
Another suggested that PRP liability would have to be limited to the amount of
liability that would have existed if each site were remediated separately.
In response, the question of whether noncontiguous facilities are
commonly owned may appropriately be among the factors for consideration in
deciding whether or not to treat noncontiguous facilities as one site;
however, EPA disagrees that common ownership should be a necessary condition
for coordinating response actions at noncontiguous facilities. At many sites,
there are numerous, disparate PRPs although the environmental threat, and the
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response technology may be the same. Limiting application of CERCLA section
104(d)(4) to sites of common ownership would be unduly restrictive, with no
gain in environmental protection. Rather, EPA's interpretation will allow for
consolidated treatment or disposal responses at one unit rather than at
several units, resulting in advantages in terms of cost, efficiency, and
protection of human health and the environment.
EPA recognizes commenters' concerns regarding liability, but believes
that the liability issue is separate and distinct from the question of whether
two facilities are appropriate for treatment as one site; the latter issue
must be evaluated on its own merits. EPA acts to treat noncontiguous
facilities as one site where to do so would be in the best interests of
achieving sound and expeditious environmental cleanups. Liability issues
potentially arise from every response action, whether waste is left on site or
is sent to a disposal facility off-site. Indeed, EPA does not believe that a
decision to transfer waste from a CERCLA facility to a noncontiguous CERCLA
facility as part of an EPA-authorized response action will result in a higher
risk of liability than would the transfer of CERCLA wastes to an off-site
commercial treatment or disposal facility. That risk of future liability is
inherent in the hazardous nature of the waste, and in the quality of the
treatment or disposal technology used; it does not result from this rule.
The commenter opposed to EPA's proposal argued that the attempt to
include multiple sites within the definition of on-site may allow particular
ecological areas, or limited segments of the population, to receive the
adverse impacts of incineration or disposal for distant sites without the
benefit of permit review.
In response to comments suggesting that PRPs and communities may be
adversely affected by the application of this policy, it is important to note
that where the lead agency plans to take a consolidated response action at two
or more noncontiguous CERCLA facilities, the agency will solicit public
comment on the proposed remedy. PRPs and members of the public at all of the
noncontiguous facilities will be afforded an opportunity to comment on the
wisdom of aggregating the sites and taking a coordinated response action.
Indeed, as noted above, EPA has identified consultation with the state(s) and
public as a critical factor in deciding whether or not to treat the facilities
as one site.
Finally, EPA wishes to clarify that even where noncontiguous facilities
are treated as one site, activities at the aggregated site must comply with
(or waive) substantive requirements of federal or state environmental laws
that are ARARs. In addition, even where noncontiguous facilities are treated
as one site, movement of hazardous waste from one facility to another will be
subject to RCRA manifest requirements.
Final rule: 1. EPA is revising the proposed definition of "on-site" in
300.5 and 300.400(e) (1) as follows:
"On-site" means the areal extent of contamination and all suitable
areas in very close proximity to the contamination necessary for
implementation of the response action.
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2. Reference to CERCLA sections 120 and 121 is added to
' 300.400 (e) (1) .
Name: Treatability testing and on-site permit exemption.
Proposed rule: The preamble to the proposed rule stated that the term on-site
does not extend to a distant facility that may be conducting a treatability
test (53 FR 51407) .
Response to comments: One commenter supported a recommendation submitted by
the Hazardous Waste Treatment Council (HWTC), summarized in the preamble to
the proposed NCP, that EPA modify the NCP to permit treatability testing
without the need to obtain a RCRA permit (53 FR 51407). EPA responded in the
preamble to the proposed rule that adjustments to permitting requirements to
encourage treatability testing should be accomplished by modifying RCRA
regulations. EPA disagreed that the term on-site should be extended to
encompass treatability testing at off-site facilities.
A commenter on this discussion in the preamble to the proposed rule
stated that modifying RCRA rules may not be effective for CERCLA responses
because, even if EPA did so, states are not required to modify their RCRA
regulations to be consistent with EPA's revision. The commenter recommended
that EPA expand the permitting exemption to include treatability tests
conducted to support remedy decisions at CERCLA sites and promulgate the
exemption in a separate fast-track interim final rule.
In response, as explained in the preamble to the proposed NCP, EPA
believes that "to the extent that it is appropriate to adjust permitting
requirements to encourage treatability testing, that should be accomplished by
directly modifying the RCRA regulations to address such testing generally" (53
FR 51408). As the commenter has pointed out, a rule has been issued under
RCRA to expand the RCRA permitting exemption at 40 CFR 261.4 to include waste
samples used to conduct small-scale treatability tests. 53 FR 27290, July
start 55 FR 8692
19, 1988. That rule was issued after the public was provided notice and
comment opportunities.
Although the commenter is not fully satisfied by the result of that RCRA
rulemaking (speculating that the exemption may not be implemented quickly, and
that some states may decide not to implement it at all), EPA is satisfied that
the proper federal regulatory action has been taken. Further, if the
commenter and other members of the public are concerned that states may not
follow the federal example, they are free to urge state governments to take
prompt and similar action. However, EPA holds to its belief that the RCRA
rulemaking is the proper forum for deciding whether a RCRA permit should be
required for treatability tests, including off-site treatability tests
conducted in support of a CERCLA action.
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EPA also declines to follow the commenter's recommendation that EPA
interpret the permit exemption in CERCLA section 121(e) to reach non-
proximate, off-site treatability tests. The CERCLA permit exemption applies
to removal or remedial actions conducted "entirely on-site." Although EPA has
interpreted the term "on-site" to include certain proximate areas not formally
within the area of contamination, that interpretation has been a limited one.
EPA has included within "on-site" only those areas that are both in "very
close proximity" to the contamination and "necessary for implementation of the
response action." As explained in the preamble to the proposed and final NCP,
such an interpretation is necessary to give practical meaning to the permit
exemption and to expedite cleanup actions. EPA does not believe, however,
that the language of the statute can be interpreted so broadly as to
accommodate the commenter's request. As EPA noted in the preamble to the
proposed NCP, "EPA does not believe that the term 'on-site' can extend to a
distant facility that may be conducting a treatability test." (53 FR 51408).
Final rule: There is no rule language on this issue.
Name: Section 300.400(h). PRP oversight.
Proposed rule: Proposed section 300.400(h) states that the lead agency "may
provide oversight for actions taken by potentially responsible parties to
ensure that a response is conducted consistent with this [rulemaking]." The
section also states that the lead agency may oversee actions by third parties
at a site.
Response to comments: Several of those who commented requested stronger
language in the NCP preamble and the above sections clarifying that EPA will^
provide for site oversight, and not that it "may" provide oversight.
EPA agrees with the comment and will provide oversight for an
enforcement action under CERCLA.
Final rule: Proposed ' 300.400(h) is amended to include the following
language: "EPA will provide oversight when the response is pursuant to an EPA
order or federal consent decree."
SECTION 300.405. Discovery or Notification
Name: Section 300.5. Definition of "CERCLIS."
Proposed rule: Section 300.5 of the proposed rule defined CERCLIS as EPA's
comprehensive data base and management system that inventories and tracks
releases addressed by the Superfund program. The section stated that CERCLIS
contains three distinct inventories: CERCLIS Removal Inventory, CERCLIS
Remedial Inventory, and CERCLIS Enforcement Inventory. The proposed
definition of CERCLIS also stated that it contains a record of both "active
releases" and "inactive releases". The definition noted that records of these
releases are retained in the database as an historical record.
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Response to comments: One commenter suggested several changes to the
definition of CERCLIS. First, the commenter suggested that the definition of
CERCLIS should be clarified to indicate whether a site can be on more than one
of the three sub-inventories at the same time. Second, the definition of
CERCLIS should state that the term "inactive release" is replacing the "no
further action" designation. Third, EPA should specifically state in the
definition, as it does in the preamble, that once a "no further action"
determination has been made, the site listing will be archived as an
historical record and that for routine informational and dissemination
purposes only active sites will be listed.
The commenter has pointed to several statements in the definition of
CERCLIS and in the preamble description of that definition that need to be
clarified. First, CERCLIS contains data integrated from the pre-remedial,
remedial, removal, and enforcement sections of the Superfund program; however,
it does not contain distinct sub-inventories for each of these program areas
(although CERCLIS has the flexibility to retrieve each of these areas
separately for tracking, planning or analysis purposes). Thus, there is only
one CERCLIS inventory.
Second, the use of the terms "active releases" and "inactive releases"
in the proposal may have been misleading, since EPA does not use these terms
to categorize sites in CERCLIS. Sites that EPA decides do not warrant moving
further in the site evaluation process are given a "No Further Response Action
Planned" (NFRAP) designation in CERCLIS. This designation signifies that no
additional federal steps under CERCLA will be taken unless information later
indicates that this decision was incorrect.
The commenters' last point, which stems from a statement in the preamble
to the proposed revisions to the NCP, also deserves clarification. EPA does
not make a distinction for information dissemination purposes between NFRAP
sites and sites that will continue in the site evaluation process. The public
has access to information on all sites listed in the CERCLIS database. (See
next preamble section for further discussion of the purpose of CERCLIS.)
Sites remain in the database after they have been evaluated to document such
evaluation and to avoid unnecessary repetition of evaluation activities.
Final rule: EPA has modified the proposed definition of CERCLIS to clarify
several points noted by the commenter and to bring the definition more in line
with current Superfund practice. The final rule's definition of CERCLIS
deletes language that indicates that there are separate sub-inventories for
removal, remedial, and enforcement sites. In addition, the final rule drops
the terms "active release" and "inactive release" and uses the term "No
Further Response Action Planned." The promulgated definition is:
"CERCLIS" is the abbreviation of the CERCLA Information System, EPA's
comprehensive data base and management system that inventories and
tracks releases addressed or needing to be addressed by the Superfund
program. CERCLIS contains the official inventory of CERCLA sites and
supports EPA's site planning and tracking functions. Sites that EPA
decides do not warrant moving further in the site evaluation process are
given a "No Further Response Action Planned" (NFRAP) designation in
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CERCLIS. This means that no additional federal steps under CERCLA will
be taken at the site unless future information so warrants. Sites are
not removed from the database after completion of evaluations in order
to document that these evaluations took place and to preclude the
possibility that they be needlessly repeated. Inclusion of a specific
site or area in the CERCLIS database does not represent a determination
of any party's liability, nor does it represent a finding that any
response action is necessary. Sites that are deleted from the NPL are
not designated NFRAP sites. Deleted sites are listed in a separate
category in the CERCLIS database.
start 55 FR 8693
Name: Sections 300.405, 300.410(h), and 300.415(e). Listing sites in
CERCLIS.
Proposed rule: Proposed ' 300.405(f)(2) stated that when notification
indicates that a removal action is not required, a remedial action may be
performed and the release will be listed in CERCLIS. Proposed ' 300.415(e)
referred to listing releases in the CERCLIS removal inventory.
Response to comments: Several commenters suggested changes to the criteria
used by EPA to list sites in CERCLIS. One commenter proposed that EPA not
list in CERCLIS sites that had already been remedied since the time they were
first discovered. In addition, the commenter urged EPA to adopt a delisting
procedure for sites in CERCLIS that had already been remedied. The commenter
noted that an alternative to this suggestion would be to keep two distinct
lists--one for "resolved sites" and a second for "unresolved sites." A second
commenter suggested that where a notifier is "doubtful" that a release has
occurred, no such qualified release report should be included in CERCLIS
without independent verification that a legally reportable release did occur.
In response, EPA believes that the commenters have attached more
significance than is warranted to the listing of a site in CERCLIS. As noted
in the definitions section of this rule (300.5), CERCLIS is a computerized
database in which EPA stores management information on all sites evaluated
under the Superfund program. Sites are discovered through a wide variety of
mechanisms, including such diverse sources as formal notification requirements
and citizen telephone calls and, as appropriate, are placed in CERCLIS. Those
sites that are included in CERCLIS are not removed from the database after
completion of evaluations in order to document that these evaluations took
place and to avoid unnecessary repetition of evaluation activities. Inclusion
of a specific site or area in the CERCLIS database does not represent a
finding of liability or a determination that response action is necessary.
EPA also does not believe that significant financial liability can be inferred
by the mere fact that a site is on CERCLIS.
The assumption that substantial, or any, risk to public health and the
environment is associated with a site contained in CERCLIS is largely
inaccurate. The percentage of sites going on to the National Priorities List,
which i_s EPA's list of sites believed to pose environmental threats
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significant enough to warrant detailed evaluation for possible remedial action
under Superfund, is now between 2 percent and 7 percent of those assessed. A
full 50 percent of CERCLIS sites are eliminated from further consideration at
the first step of the process, the preliminary assessment (PA).
Sites that EPA decides do not warrant moving further in the process are
given a "No Further Response Action Planned (NFRAP)" designation in CERCLIS.
This means that no additional federal steps will be taken at the site unless
information arrives from some source indicating that this decision was
incorrect. It is particularly important to note that EPA's NFRAP decision
does not mean that there is no hazard associated with a given site; it means
only that based on available information at that time, EPA does not plan to
take further action under CERCLA. States are notified of all NFRAP decisions
in order to inform them that the federal government does not plan to proceed
further, and to allow states the opportunity to share any additional data they
may have that would change the decision. A small percentage of NFRAP sites
are returned to active consideration through this mechanism each year.
Accordingly, EPA is deleting language in the rule that implies that a
release is entered into CERCLIS after a remedial evaluation has been
performed. In fact, sites are generally entered into CERCLIS befor^a
remedial evaluation has been performed. Thus, EPA is revising this rule
language to more accurately reflect EPA evaluation practice.
Also, consistent with the explanation in the previous preamble section
that CERCLIS does not contain distinct inventories for the removal, remedial
and enforcement programs, references to removal and remedial inventories have
been deleted from proposed '' 300.405(f)(2), 300.410(h), and 300.415(e).
A sentence has been added to ' 300.405(g) clarifying that federal
agencies are not legally obligated to comply with the requirements of Title
III because they are not included in the Title III definition of "person"
contained in section 329(7). Federal agencies are encouraged, however, to
establish programs to implement Title III to the extent practicable at their
facilities.
Many federal facilities have already established procedures for working
with local emergency planning committees and state emergency response
commissions on compliance with the emergency planning and reporting
requirements under Title III.
Final rule: Proposed '' 300.405 and 300.415(e) are revised as follows:
1. The last sentence in proposed ' 300.405(b) is revised as follows (see
explanation in preamble discussion on ' 300.615): "If it is not possible to
notify the NRC or predesignated OSC immediately, reports may be made
immediately to the nearest Coast Guard unit. In any event, such person in
charge of the vessel or facility shall notify the NRC as soon as possible."
2. The reference to the "CERCLIS Remedial Inventory" has been deleted
from proposed ' 300.405(f)(2).
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3. The following sentence has been added to ' 300.405(g): "Federal
agencies are not legally obligated to comply with the requirements of Title
III of SARA."
4. Proposed ' 300.415(e) on CERCLIS removal inventory is deleted. The
sections in ' 300.415 have been renumbered.
SECTIONS 300.410 AND 300.420. Removal and remedial site evaluations.
Name: Section 300.410. Removal site evaluation.
Proposed rule: Proposed ' 300.410 describes the removal site evaluation
process, but does not address funding constraints placed on the evaluation or
PRP participation in the evaluation.
Response to comments: One commenter recommended including NCP preamble
language that would authorize the OSC to use outside scientific experts during
the removal site evaluation, providing that the PRP is willing to pay for such
scientific support.
There is nothing in the statute to prevent or discourage the use of
additional scientific fact experts at a site provided PRPs are willing to pay
for it themselves. The discussion in the preamble to the proposed ' 300.410
suggested such additional activity is permissible with OSC oversight: "There
may also be instances of voluntary response where the OSC provides monitoring
to assure proper response and to avoid a situation where followup action would
be needed" (53 FR 51409). Any data generated by outside scientific experts
would have to conform to appropriate provisions of the NCP in order to be used
as the basis for decisions under CERCLA.
Final rule: EPA is promulgating ' 300.410 as proposed except for a revision to
300.410(g) (see preamble section below) and deletion of the last sentence in
300.410(h)(see preamble section above on listing sites in CERCLIS).
Name: Section 300.410(c)(2). Removal site evaluation. Section 300.420(c)(5).
Remedial site evaluation.
Proposed rule: Section 300.410(c)(2) details the steps of a removal
preliminary assessment. Section
start 55 FR 8694
300.420(c)(5) describes the information contained in a lead-agency report
following completion of a remedial site investigation, including documentation
as well as sampling data and potential risks to humans and the environment.
Response to comments: A commenter asked that the NCP state that reasonable
efforts will be made during the site investigation phase to identify PRPs and
provide them copies of the preliminary assessment/site investigation (PA/SI)
report and an opportunity to comment.
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The removal and remedial processes as currently outlined in the NCP
provide PRPs with a reasonable opportunity to review and comment on lead
agency actions at a site when the proposed plan is made available. Before
this time, documents placed in the administrative record, including the PA/SI,
are available for public inspection. In addition, PRPs that are interested in
more extensive involvement in the investigation process may agree to undertake
removal or remedial actions through a settlement agreement with EPA. They may
be granted substantially more site involvement than non-settling PRPs.
Extending the formal review and comment period to PRPs as far back in
the removal and remedial process as the PA/SI stage would unnecessarily slow
down preliminary fact-gathering at a site. In cases where removal actions are
considered emergency or time-critical, such review and comment time would
unjustifiably delay response to a dangerous situation. Also, in most cases,
the PRP search has not been completed or even started in a comprehensive
manner at the time of the PA/SI. Accordingly, specifying formal procedures
for PRP involvement at that time is not practical.
Final rule: EPA is promulgating '' 300.410(c)(2) and 300.420(c)(5) as
proposed.
Name: Section 300.410(g). Notification of natural resource trustee.
Final rule: Section 300.410(g) is revised as follows (see preamble discussion
on ' 300.615):
If natural resources are or may be injured by the release, the OSC or
lead agency shall ensure that state and federal trustees of the affected
natural resources are promptly notified in order that the trustees may
initiate appropriate actions, including those identified in Subpart G of
this Part. The OSC or lead agency shall seek to coordinate necessary
assessments, evaluations, investigations, and planning with such state
and federal trustees.
Name: Sections 300.415(b)(4) and 300.420(c)(4). Sampling and analysis plans.
Proposed rule: Proposed ' 300.415 did not describe sampling requirements.
Proposed ' 300.420(c)(4) described the procedures necessary for preparing a
site-specific sampling plan for a remedial site inspection.
Response to comments: One commenter stated that EPA should revise
300.420(c)(4) to specify review of the sampling plan to ensure that
appropriate sampling and quality control procedures are followed. In
response, EPA is revising the description of the site-specific sampling plan
in proposed ' 300.420(c)(4) to conform with the purpose of the quality
assurance project plan (QAPP) defined in ' 300.5 and the QAPP and sampling and
analysis plan described in 300.430(b) (8), which states that such plans will be
approved by EPA. This change emphasizes the similarity of these activities in
the site evaluation and remedial investigation parts of the program. In
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addition, EPA believes that, when samples will be taken, it is appropriate to
describe sampling requirements for non-time-critical removal actions to ensure
that data of sufficient quality and quantity will be collected for this type
of action.
EPA also notes that portions of the QAPP may incorporate by reference
non-site-specific standardized portions of already-approved QAPPs, especially
those portions addressing policy and organization, or describing general
functional activities to be conducted at a site to ensure adequate data. This
eliminates the necessity to reproduce non-site-specific quality assurance
procedures for every site.
Final rule: Proposed '' 300.415(b) (4) and 300.420(c) (4) are revised as
follows:
1. In 300.415(b) (4), a requirement has been added for developing a
sampling and analysis plan, when samples will be taken.
2. Section 300.420(c)(4) is revised to better describe the required
contents of the sampling and analysis plan.
SECTION 300.415. Removal action.
Name: Section 300.415(b)(5)(ii). Removal action statutory exemption.
Proposed rule: CERCLA section 104(c)(1)(C) provides a new exemption to the
statutory limits on Fund-financed removal actions of $2 million and 12 months.
This exemption, stated in the NCP in ' 300.415(b)(5)(ii), is applicable when
continued response is otherwise appropriate and consistent with the remedial
action to be taken. EPA expects to use the exemption primarily for proposed
and final NPL sites, and only rarely for non-NPL sites (see 53 FR 51409).
Response to comments: One commenter supported EPA's proposal to allow waiver
of the limits on Fund-financed removal payments if such an exemption is
consistent with remedial actions.
One commenter stated that the decision to engage in a removal action
should be based on site conditions and their impact on health and the
environment, not cost or time; that once EPA concludes that a removal action
is appropriate, the various alternatives should be analyzed at both likely NPL
and non-NPL sites equally. The commenter felt that EPA should use the
consistency exemption more liberally where time, rather than money, was the
complicating factor.
In response, Congress has made the determination that cost and time are
relevant factors in deciding how extensive a Fund-financed removal action may
be; thus, contrary to the commenter's remark, EPA will continue to consider
such factors. Further, Congress did not differentiate between time and
dollar limits in setting the exemptions; EPA notes that exceeding the time
limit will often also increase the cost of a removal action, even though it
does not necessarily raise the cost to over $2 million. Thus, EPA does not
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believe it should set different criteria for their use.
The new exemption from the time and dollar limits applies to any Fund-
financed removal and thus encompasses state-lead as well as EPA-lead
responses. Actions where EPA has the lead, but is to be reimbursed by private
parties or other federal agencies, are still subject to the statutory limits
and provisions for exemption.
Because the exemption requires consistency with the remedial action to
be taken, its use is well suited to proposed or final NPL sites where remedial
action is likely to be taken. It may also be appropriate to use this
exemption at some non-NPL sites where justified on a case-by-case basis.
Final rule: EPA is promulgating the rule as proposed.
Name: Section 300.415(i). Removal action compliance with other laws.
Existing rule: The current NCP in ' 300.65(f) requires that Fund-financed
removal actions and removal actions pursuant to CERCLA section 106 attain or
exceed, to the greatest extent practicable considering the exigencies of the
circumstances, applicable or relevant and appropriate federal public health
and environmental requirements. Other federal criteria, advisories, and
guidance and state standards are to be
start 55 FR 8695
considered, as appropriate, in formulating a removal action.
Proposed rule: Proposed ' 300.415(j) (renumbered as 300.415(i) in the final
rule) required that removal actions attain, to the extent practicable
considering the exigencies of the situation, all state as well as federal
applicable or relevant and appropriate requirements (ARARs). Other federal
and state criteria, advisories, and guidance shall, as appropriate, be
considered in formulating the removal action. The proposed revisions also
note that statutory waivers from attaining ARARs may be used for removal
actions. In addition, the preamble to the proposed revisions provided
guidance clarifying three factors to be considered in determining the
"practicability" of complying with ARARs: The exigencies of the situation, the
scope of the removal action to be taken, and the effect of ARAR attainment on
the removal statutory limits for duration and cost (53 FR 51410-11).
Response to comments: Several commenters supported the proposed revision to
the NCP requiring that both federal and state ARARs be complied with when
conducting removal actions. One commenter asked what documentation is
required to show that ARARs have been identified and requested that EPA
develop guidance providing hypothetical conditions describing the extent to
Note that proposed ' 300.415(e) has been deleted (see preamble section above
on "Listing sites in CERCLIS," and the remaining sections in ' 300.415 have
been renumbered.
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which ARAR analysis should be performed. Another commenter stated that non-
Fund-financed removal actions conducted at federal facilities also should be
required to comply with ARARs.
In opposition to the proposal, a number of commenters pointed out that
Congress did not intend that removal actions be required to comply with ARARs.
The commenters suggested that, based on the legislative history, Congress
intended that only remedial actions be subject to compliance with ARARs.
According to one commenter, the legislative history states that ARARs do not
apply during removal actions because removal actions are short-term,
relatively low-cost activities of great urgency that should be free of the
delays that may arise if it is necessary to identify and attain ARARs.
Other commenters suggested that attainment of ARARs should not be
required during removal actions because removal actions are not intended to
completely clean up a site, but rather to quickly eliminate or control an
immediate threat. The commenters argued that compliance with ARARs is based
on what remains on site after an entire remedy is completed, not after a
particular problem is controlled. In addition, several commenters argued that
the main purpose of the removal program is quick mitigation of threats, and
that requiring ARARs to be complied with during removal actions undermines
this purpose by slowing down the cleanup process. The commenters suggested
that such procedural delays as identification of ARARs will hinder the removal
program's ability to respond to emergencies swiftly.
Several additional commenters suggested that requiring attainment of
ARARs discourages PRPs from undertaking removal actions. Fund-financed
removals can use the statutory limits to limit attainment of ARARs; those
limits do not apply to PRP actions.
One commenter opposed the provision that requires OSCs to justify why
they are not attaining ARARs during a specific removal action. The commenter
argued that the prospect of an OSC being required to justify why he or she is
not attaining all ARARs is inconsistent with removal program objectives.
Other commenters believed that the current policy concerning compliance
with ARARs during removal actions should be replaced with a more discretionary
policy. They suggested that OSCs should only be required to comply with ARARs
that are most crucial to the proper stabilization of the site and protection
of public health and the environment.
In response, EPA has carefully reviewed this issue in light of the
public comments, and believes a number of clarifying points need to be made.
First, as a threshold matter, EPA agrees that Congress did not, in the 1986
amendments to CERCLA, "require" EPA to meet ARARs during removal actions.
However, it has been EPA's policy since 1985, established in the NCP, to
attain ARARs during removals to the extent practicable, considering the
exigencies of the situation. EPA believes that this is still a sound policy.
Reference to requirements under other laws (i.e., ARARs) help to guide EPA in
determining the appropriate manner in which to take a removal action at many
sites.
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If, for example, a component of the removal action is to discharge
treated waste to a nearby river or stream, effluent limitations based on
federal or state water quality criteria will be useful in determining the
extent of such treatment. Today's policy is consistent with section 105 of
CERCLA which directs that the NCP include methods and criteria for determining
the appropriate extent of removals. Thus, EPA is maintaining the policy
described in the preamble to the proposed NCP, although EPA has modified the
factors to be considered in determining practicability.
A number of other comments questioned the extent to which removals
should attempt to attain ARARs. In responding to such comments, it is
important to note that the policy that removals comply with ARARs to the
extent practicable is defined in large part by the purpose of removal actions.
The purpose of removal actions generally is to respond to a release or
threat of release of hazardous substances, pollutants, or contaminants so as
to prevent, minimize, or mitigate harm to human health and the environment.
Although all removals must be protective of human health and the environment
within their defined objectives, removals are distinct from remedial actions
in that they may mitigate or stabilize the threat rather than comprehensively
address all threats at a site. Consequently, removal actions cannot be
expected to attain all ARARs. Remedial actions, in contrast, must comply with
all ARARs (or invoke a waiver). Indeed, the imposition by Congress of limits
on the amount of time and Fund money that may be spent conducting a removal
action often precludes comprehensive remedies by removal actions alone.
Removal authority is mainly used to respond to emergency and time-critical
situations where long deliberation prior to response is not feasible. All of
these factors -- limits on funding, planning time, and duration, as well as
the more narrow purpose of removal actions -- combine to circumscribe the
practicability of compliance with ARARs during individual removal actions.
Indeed, the vast majority of removals involve activities where consideration
of ARARs is not even necessary, e.g., off-site disposal, provision of
alternate water supply, and construction of fences, dikes and trenches.
Further, it should be noted that requirements are ARARs only when they
pertain to the specific action being conducted. If, for example, a site has
leaking drums, widespread soil contamination, and significant ground-water
contamination, the removal action at the site might only involve actions
necessary to reduce the near- term threats, such as direct contact and further
deterioration of the ground
start 55 FR 8696
water; thus, the removal action might be limited to removal of the drums and
surface debris and excavation of highly contaminated soil. Requirements
pertaining to the cleanup of ground-water contamination would not be ARARs for
that action because the removal action is not intended to address ground
water; rather, requirements pertaining to the drums, surface debris, or
contaminated soil may be ARARs for the specific removal action. Once the lead
agency makes the determination that the requirements are ARARs for a removal,
then it must determine whether compliance is practicable.
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It will generally be practicable for removal actions to comply with
ARARs that are consistent with the goals and focus of the removal. However,
as stated above, removals are intended to be responses to near-term threats,
with the ability to respond quickly when necessary; thus, ARARs that would
delay rapid response when it is necessary, or cause the response to exceed
removal goals, may be determined to be impracticable. Of course, even where
compliance with specific ARARs is not deemed practicable, the lead agency for
a removal must use its best judgment to ensure that the action taken is
protective of human health and the environment within the defined objectives
of the removal action.
In order to better explain how a lead agency can determine when
compliance with an ARAR is practicable, the preamble to the proposed NCP
included three factors for consideration: Exigencies of the situation, scope
of the removal action and the statutory limits (53 FR 51410-11). Upon
consideration of comments, EPA has decided to enumerate in the rule only two
of those three factors as important for determining practicability: Urgency
(simply renaming exigencies) of the situation, and scope of the removal
action. EPA believes that statutory limits, because they relate to the
authority to conduct removal actions, are easier to consider within, rather
than apart from, the factor of scope of the removal action when determining
whether compliance with an ARAR is practicable.
The factor of urgency of the situation relates to the need for a prompt
response. In many cases, appropriate response activities must be identified
and implemented quickly in order to ensure the protection of human health and
the environment. For example, if leaking drums pose a danger of fire or
explosion in a residential area, the drums must be addressed immediately, and
it will generally be impracticable to identify and comply with all potential
ARARs.
The second factor, the scope of the removal action relates to the
special nature of removals in that they may be used to minimize and mitigate
potential harm rather than totally eliminate it. Removals are further limited
in the amount of time and Fund money that may be expended at any particular
site in the absence of a statutory exemption. Again, using the example above,
even though standards requiring cleanup of the lower level soil contamination
would be an ARAR to that medium, they would be outside the scope of the
removal action when such cleanup is not necessary for the stabilization of the
site, or when it would cause an exceedance of the statutory limits and no
exemption applied. Hence, such soil standards, while ARARs, would not be
practicable to attain considering the exigencies of the situation. Of course,
such standards may be ARARs for any remedial action that is subsequently taken
at the site.
EPA disagrees with the comment that requiring PRPs to comply with ARARs
to the extent practicable discourages PRPs from conducting removals because
the statutory limits do not apply to non-Fund-financed actions. Although the
limits apply by law to Fund-financed actions only, EPA has the discretion
under CERCLA section 104(c)(1) to take removal actions that exceed those
limits, in emergency situations or where the action is otherwise appropriate
and consistent with the remedial action that may be taken at the site. EPA
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will select the appropriate remedy, even where an extensive removal action is
warranted, regardless of whether the site is Fund-lead or PRP-based. The only
difference is that if the site is Fund-lead, an exemption must first be
invoked in order to proceed with the action. Thus, the time and dollar
limitations generally will not result in PRPs performing a more extensive
removal than EPA itself would conduct. That is, EPA's selection of a removal
action, including what ARARs will be attained, will not be based on who will
be conducting the removal.
Finally, as stated in the preamble to the proposed NCP (53 FR 51411),
even if attainment of an ARAR is practicable under the factors described
above, the lead agency may also consider whether one of the statutory waivers
from compliance with ARARs is available for a removal action. EPA is
developing guidance on the process of complying with ARARs during removal
actions. EPA generally will only require documentation of ARARs for which
compliance is determined to be practicable, in order not to burden OSCs with
substantial paperwork requirements.
Final rule: Proposed ' 300.415(j)(renumbered as final
300.415(i)) is revised as follows:
1. The following has been added to identify factors that are appropriate
for consideration in determining the practicability of complying with ARARs:
In determining whether compliance with ARARs is practicable, the lead
agency may consider appropriate factors, including the following:
(1) The urgency of the situation; and
(2) The scope of the removal action to be conducted.
2. The reference to advisories, criteria or guidance has been modified
(see preamble section below on TBCs).
3. The description of ARARs has been reworded (see preamble section
below on the definition of "applicable."
Name: Sections 300.5, 300.415(g) and (h), 300.500(a), 300.505 and 300.525(a).
State involvement in removal actions.
Existing rule: Sections 300.61 and 300.62 of the current NCP encourage states
to undertake actions authorized under Subpart F. Such actions include removal
and remedial actions pursuant to CERCLA section 104(a)(1). The regulation
notes further that CERCLA section 104(d)(1) authorizes the federal government
to enter into contracts or cooperative agreements with the state to take Fund-
financed response actions authorized under CERCLA, when the federal government
determines that the state has the capability to undertake such actions.
Proposed rule: Proposed '' 300.415(h) and (i)(renumbered as final
300.415(g) and (h)) and 300.525(a) would codify EPA's existing policy of
entering into cooperative agreements with states to undertake Fund-financed
removal actions, provided that states follow all the provisions of the NCP
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removal authorities. The preamble to the proposed rule suggested that non-
time-critical actions are the most likely candidates for state-lead removals
(53 FR 51410). Proposed ' 300.510(b) provided further that facilities
operated by a state or political subdivision require a minimum cost share of
50 percent of the total response costs if a remedial action is taken. Section
300.505 describes what EPA and a state may agree to in a Superfund Memorandum
of Agreement (SMOA) regarding the nature and extent of interaction on EPA-lead
and state-lead response. The preamble clarified that, where practicable, a
SMOA may include general provisions
start 55 FR 8697
for interaction on removal actions (53 FR 51455). The preamble to the
proposed rule described other topics for EPA/state discussion on provisions in
SMOAs on removal actions (53 FR 51454-55) .
Response to comments: One commenter supported the proposed revision stating
that state-lead removals through a cooperative agreement would be a very
positive step. The commenter argued, however, that it would be unreasonable
to provide guidance that strongly encourages states to conduct such removals
when no funds for conducting them are made available.
Several commenters specifically called for the delegation of the removal
program to the states. One of these commenters stated that the revised NCP
should include more detailed and permissive language specifically allowing for
program authority to be delegated to states. According to the commenter, this
would allow response-capable states to pursue program authorization from EPA
through cooperative agreements rather than through single or multiple project
authorizations. In addition, the commenter recommended that states which
become authorized to conduct removal actions be granted funding support
similar to the support that EPA provides for the Technical Assistance Team and
the Emergency Response Cleanup Services, thereby allowing the state to
effectively administer the duties of the lead agency during a removal action.
The commenter also recommended that authorized states be allowed full
reimbursement of their removal costs from the Hazardous Substances Trust Fund.
Another commenter suggested allowing states to develop administrative and
technical staff capable of overseeing removal actions. The commenter believed
that a policy should be included in the NCP that allows for the states to hire
contractors on a stand-by basis to allow for timely response to removal sites.
A third commenter recommended that states be permitted by the NCP to
establish predesignated OSCs/RPMs who would have the authority to use federal
funds pursuant to a cooperative agreement or contract for cleanup of oil and
hazardous substances under these programs.
Other commenters called for at least some expanded opportunities for
state involvement in the removal program. Several commenters argued that
states should be allowed to conduct more than just non-time critical removals,
indicating that it would be faster and far less costly for states to conduct
all types of removals. Another commenter argued that states should be
afforded the opportunity to conduct removal actions under cooperative
agreements unless an emergency exists that does not allow time for EPA to
enter into a cooperative agreement with the state. One commenter suggested
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that states now have very effective Superfund programs with experienced and
capable staffs. According to the commenter, some of these programs have
better cleanup records than the federal program. The commenter states that
EPA has failed to take full advantage of these state programs to improve the
performance of the federal Superfund effort.
Several commenters requested clarification of EPA policies on state-lead
removals. The commenters requested further clarification in the NCP regarding
the circumstances under which states will be allowed to conduct non-time-
critical removals, what criteria will be used to make decisions concerning
when states will be allowed to conduct such actions, and how a state-lead
removal program will be structured.
Other commenters suggested that EPA more clearly define the EPA/state
relationship concerning removal actions. One of these commenters suggested
that EPA should emphasize state/EPA coordination on all removal actions
regardless of who is in the lead. Another commenter stated that the NCP
should outline the EPA/state interaction on removal sites in the same detail
as the relationship is outlined at remedial sites.
One commenter representing a state presented specific examples of how
present state/EPA removal interaction is ineffective. The commenter alleged
that the state had been left out of public meetings and meetings between EPA
and the PRPs, that the state is not consulted on press releases, and that
state comments on negotiations with PRPs are not considered by EPA. Another
commenter suggested that EPA in general take into consideration state comments
when conducting removal actions.
In response, EPA is committed to state involvement in the removal
program and is, therefore, revising regulatory language in '' 300.5,
300.500(a) and 300.505 regarding SMOAs to include references to removal
actions. EPA believes that the SMOA can often be used to specify the areas
appropriate for EPA/state interaction during removal actions. As noted in the
preamble to the proposed rule, the SMOA may include: (1) the process to be
followed by EPA and a state to notify each other of a determination that a
removal action is necessary; (2) the procedures to be followed by EPA and a
state to consult and comment upon the nature of any proposed removal action;
and (3) the procedures to be followed to provide for post-removal site control
for Fund-financed removals as described in ' 300.415(k). A definition of
"post-removal site control" has been added to ' 300.5 because this term
is used in several places in the NCP. If EPA and a state desire, the SMOA
provisions may also include details on interaction at public meetings,
negotiations with PRPs, etc. EPA wishes to emphasize, however, that the
negotiations concerning EPA/state interaction during removal actions should
not be allowed to interfere with or prolong the completion of the SMOA
negotiations. If EPA and the state find that discussion of the provisions
regarding removal actions is delaying completion of the SMOA, they should
proceed with the SMOA negotiations without removal action provisions, and at a
later date amend the SMOA to include these provisions.
Currently, EPA's policy is that states may conduct a non-time-critical
removal action for a specific site. In response to comments, EPA considered
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allowing states to conduct Fund-financed time-critical and emergency removal
actions as well. After careful consideration, however, EPA decided to
continue its current policy of allowing only non-time-critical removal actions
to be state-lead. In arriving at this decision, EPA weighed several factors
concerning the nature of removal actions, and the history of the removal
program. First, EPA may not obligate funds in anticipation of removal actions
that may take place in the future. Therefore, states must enter into site-
specific cooperative agreements (CAs) before they are allowed to undertake a
removal action. In the past, EPA attempted using CAs more extensively in the
removal program but found that the CA negotiating process is often long and
complicated. EPA was concerned that the process could hinder timely response
to releases requiring emergency or time-critical action. Second, the removal
program has limited funding. Because of the necessity for ensuring adequate
response capabilities on the federal level, EPA does not anticipate that
additional funding will be available for states to conduct emergency and time-
critical removal actions and, therefore, does not believe it would be feasible
to allow states to undertake these types of response actions. For these
reasons, EPA believes that its current policy of permitting states to conduct
only non-time-critical removal actions allows
start 55 FR 8698
EPA to retain its ability to respond immediately to releases that threaten
human health and the environment while simultaneously providing states a role
in the removal action process.
For a state to conduct Fund-financed, non-time-critical removal actions,
the state must first enter into a CA with EPA. Additionally, only removal
actions that are listed on the approved or revised Superfund comprehensive
accomplishments plan (SCAP) can be state-lead. The Regional Administrator
(RA) evaluates a state's request to lead a Fund-financed removal action and
decides on a case-by-case basis whether the action is appropriate for state-
lead. When making his/her decision the RA considers: (1) the state's
experience in leading activities conducted under the remedial program that are
similar to the response actions required to clean up or to stabilize the
release at the site under evaluation for state-lead; (2) the state's
experience in responding to hazardous substance releases independent of
federal involvement and funds; and (3) whether the state has prepared a state
contingency plan for hazardous substance release response. For more
information concerning state-lead removals see 40 CFR Part 35 Subpart O.
In further response to the comment on delegating authority (and
transferring funds) to states, EPA notes that although authority to conduct
time-critical and emergency removals is not being delegated to states, funding
may be available under the Core Grant Program to assist states in developing
an infra-structure for involvement and interagency coordination during removal
actions. For more information concerning the Core Grant Program see 40 CFR
Part 35 Subpart O.
Final rule: 1. Proposed '' 300.5 (definition of SMOA), 300.500(a),
300.505(a)(3) and 300.505(d)(1) are revised to add the word "removal" before
the word "pre-remedial."
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2. Proposed '' 300.415(h) and (i) are renumbered as
300.415(g) and (h) and promulgated as proposed.
I I
3. A definition for "post-removal site control" is added to ' 300.5 as
follows:
"Post-removal site control" means those activities that are necessary to
sustain the integrity of a Fund-financed removal action following its
conclusion. Post-removal site control may be a removal or remedial
action under CERCLA. The term includes, without being limited to,
activities such as relighting gas flares, replacing filters and
collecting leachate.
4. References to "post-removal site control" have been added to the
definitions in ' 300.5 of "remove or removal" and "remedy or remedial action."
SECTION 300.425 Establishing remedial priorities.
Name: Section 300.5. Definition of National Priorities List. Section
300.425. Establishing remedial priorities.
Proposed rule: Section 300.5 included a definition of National Priorities
List. Section 300.425 identified the criteria, methods, and procedures EPA
uses to establish its priorities for remedial action. The proposed rule
stated that although only those releases included on the NPL are eligible for
Fund-financed remedial action, remedial planning activities pursuant to CERCLA
section 104(b) are not considered remedial actions and are not limited to NPL
sites.
Response to comments: EPA has made several changes to language on listing
sites on the National Priorities List. First, EPA is revising the rule to
explain more clearly which EPA authorities are limited to sites on the NPL.
In both the existing NCP (40 CFR 300.66(c) (2), 300.68(a) (1)) and the
1988 proposed revisions (' 300.425(b)(1), 53 FR at 51502), EPA has stated that
Fund money may be used for CERCLA remedial actions only for those releases
that are listed on the NPL. The 1985 NCP (40 CFR 300.68(a)(1)) and the
proposed revision went on to state that this limitation on the use of Fund
money would not apply to "remedial planning activities pursuant to CERCLA
section 104(b)," which despite the use of the word "remedial" in the name,
come within the definition of "removal" actions under CERCLA section 101(23).
See 54 FR 41002 (October 4, 1989); 52 FR 27622 (July 27, 1987); 50 FR 47927
(November 20, 1985). In the interest of clarity on this point, EPA has
amended final ' 300.425(b) (1) to provide that the limitation on remedial
action funding to releases on the NPL would not apply to "removal actions
(including remedial planning activities, RI/FSs, and other actions taken
pursuant to CERCLA section 104(b))." This clarification is consistent with
the proposed and final ' 300.415(b)(1), which states that a removal action may
be taken at appropriate sites regardless of inclusion on the NPL.
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The proposed and final rule, at ' 300.425(b)(4), also make clear that
EPA may take enforcement actions at non-NPL sites. EPA also notes that it has
the discretion to use its authorities under CERCLA, RCRA, or both to
accomplish appropriate cleanup action at a site, even where the site is listed
on the NPL. (See 54 FR at 41009 (Oct. 4, 1989).) In particular, where a site
is at an active, RCRA-permitted facility, and the owner/operator is present
and has adequate financial resources to fund the entire cleanup, EPA may
consider whether the use of RCRA or CERCLA authorities (or both) is most
appropriate for the accomplishment of cleanup at the site. In the context of
federal facility cleanups, this decision, and the cleanup plan in general,
would be discussed in the Interagency Agreement (IAG) for the facility.
Second, EPA is deleting a sentence from ' 300.425(b) (2) that reads:
"Responsible parties shall pay for or implement response actions to the
fullest extent practicable." EPA reiterates that it is EPA policy for
responsible parties to pay for or implement response actions to the maximum
extent practicable. EPA believes, however, that this policy is more
appropriately stated in the preamble.
In addition, proposed ' 300.425(c) (2) is revised to add the phrase "(not
including Indian tribes)" in order to be consistent with the reference to
"state" in CERCLA section 105(a)(8)(B).
Consistent with the revisions to ' 300.425, EPA is also revising the
proposed definition of National Priorities List in ' 300.5 to clarify that
EPA may allow actions other than Fund-financed actions under CERCLA to be
conducted at NPL sites.
Final rule: 1. The proposed definition in ' 300.5 is revised as follows:
"National Priorities List" (NPL) means the list, compiled by EPA
pursuant to CERCLA section 105, of uncontrolled hazardous substance
releases in the United States that are priorities for long-term
evaluation and response.
2. Proposed ' 300.425(b) is revised as follows:
(b) Nationa^^riorities_^ist. The NPL is the list of priority
releases for long-term evaluation and remedial response.
(1) Only those releases included on the NPL shall be considered
eligible for Fund-financed remedial action. Removal actions (including
remedial planning activities, RI/FSs and other actions taken pursuant to
CERCLA section 104(b)) are not limited to NPL sites.
(2) Inclusion of a release on the NPL does not imply that monies
will be expended, nor does the rank of a release on the NPL establish
the precise priorities for the allocation of Fund resources. EPA may
also pursue other appropriate authorities to remedy the release,
including enforcement actions under CERCLA and other laws. A site's
rank on the NPL serves, along with other factors, including enforcement
actions, as a basis to guide the allocation of Fund resources among
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releases.
3. The first sentence of proposed ' 300.425(c) (2) is revised as follows:
"A state (not including Indian tribes) has
start 55 FR 8699
designated a release as its highest priority."
Name: Section 300.425(d)(6). Construction Completion category on the
National Priorities List.
Proposed rule: EPA proposed to establish a new "category" as part of the NPL
- the "Construction Completion" category (see 53 FR 51415). The category
would consist of: (a) Sites awaiting deletion, (b) sites awaiting deletion but
for which CERCLA section 121(c) requires reviews of the remedy no less often
than five years after initiation, and (c) sites undergoing long-term remedial
actions (LTRAs). EPA believes the new category would communicate more clearly
to the public the status of cleanup progress among sites on the National
Priorities List (NPL).
EPA would shift sites into the Construction Completion category only
following approval of interim or final Close Out Reports. EPA would approve
the Reports only after remedies have been implemented and are operating
properly. Approval of an interim Close Out Report indicates that construction
of the remedy is complete, and that it is operating properly, but that the
remedy must operate for a period of time before achieving cleanup levels
specified in the Record of Decision (ROD) for the site. Approval of a final
(including amended) Close Out Report indicates that the remedy has achieved
protectiveness levels specified in the ROD(s), and that all remedial actions
are complete. The proposal also indicates that EPA believes that sites
requiring five-year review under ' 300.430(f)(3)(v)(renumbered as final
300.430(f)(5)(iii)(C)) may, when appropriate, be deleted from the NPL.
Response to comments: All commenters on this policy recommended adoption of
the proposal to recategorize sites. One commenter disagreed with EPA's name
for the new category, stating that construction at some sites in the category
would not be complete. EPA disagrees with this interpretation; as explained
above, for both LTRA sites and sites awaiting deletion, construction of the
remedy must be complete and operating properly before it may be placed in this
new category. Another commenter interpreted EPA's proposal to mean that it
would create a new status code on the NPL, rather than a new category, or sub-
section. EPA believes a distinct category more clearly provides remedial
progress information to the public. EPA has found this to be true with regard
to federal facility sites, which have been placed in a separate category of
the NPL. Thus, the idea of categorizing sites on the NPL is not a new one.
Indeed, the 1985 NCP specifically afforded EPA the discretion to "re-
categorize" certain types of sites (see 40 CFR 300.66(c)(7)(1985)). EPA is
specifically acknowledging this discretion in final
' 300.425(d)(6).
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The commenter stated that EPA should seek state concurrence before
placing a site under the new status. EPA disagrees that it should seek formal
state concurrence to recategorize sites. Recategorization is a mechanical
process and does not have regulatory significance; it is merely a better
method of communicating site status to the public. Moreover, EPA will
recategorize sites only on the basis of approved interim or final Close Out
Reports, and states will continue to be involved in remedy inspections and
review or preparation of the reports. EPA will obtain state concurrence and
solicit public comments before deleting sites from the NPL, pursuant to
300.425(e) .
Another commenter supported the concept of recategorizing sites,
particularly those at which only operation and maintenance remains to be
conducted. However, the commenter also states that such sites could
appropriately be deleted entirely from the NPL. A different commenter
suggested that the Construction Completion category should exclude sites
requiring only operation and maintenance and that such sites should be deleted
from the NPL. EPA intends that a site requiring only operation and
maintenance at the time of construction completion be recategorized as a
temporary measure until the process of reviewing the site for possible
deletion from the NPL has been completed.
One commenter stated that proposed ' 300.430(f)(3)(v) is unclear
regarding whether EPA would conduct five-year reviews at sites in certain
phases of response, or having certain status vis-a-vis the NPL, i.e., sites
still on the NPL, deleted sites, and sites where LTRAs are underway. The
commenter went on to state that, if a five-year review indicates that
additional action is required at a site that has been deleted from the NPL,
EPA must clarify under what authority the action is to be conducted.
EPA will conduct five-year reviews for appropriate sites after
initiation of the remedial action. Thus, reviews may be conducted during
phases of the remedial action, during LTRA status, and, where appropriate,
after a site has been deleted from the NPL. EPA continues to develop its
policy on five-year reviews, and plans to issue further guidance on these
issues. EPA has discretionary authority to take further action at a deleted
site if a review indicates that the remedy is no longer protective. CERCLA
section 105(e) states that EPA may restore the site to the NPL without re-
applying the Hazard Ranking System (HRS), and CERCLA section 121(c) provides
that EPA make take or require action, if appropriate, following a review.
Section 300.425(e)(3) again states this point, and further states that all
releases deleted from the NPL are eligible for Fund-financed remedial actions
should future conditions warrant such actions.
Another commenter stated that "five-year review" sites should be deleted
from the NPL rather than placed in the Construction Completion category. In
response, at the time of proposal, EPA announced its view that five-year
review sites may be considered "sites awaiting deletion," i.e., deletion
candidates. Upon consideration of the issue, EPA believes that it may
generally not be appropriate to delete any of these sites before performing at
least one review after completion of the remedial action. This is consistent
with a recommendation of the Administrator's 90-day study of the Superfund
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Program, "A Management Review of the Superfund Program," and with OSWER
policy.
This position reflects an EPA policy decision that in most cases where
hazardous substances remain after the completion of remedial action, it is
appropriate to act more slowly on deleting the sites from the NPL, consistent
with the concern evidenced by Congress in specifically mandating review at
least every five years at such sites. This policy is also consistent with the
limited purpose of the NPL as an informational list of sites at which CERCLA
attention is appropriate (53 FR at 51415-16); the continued inclusion of the
site on the NPL does not mean that response action will be taken at the site.
See 48 FR 40658, 40659 (Sept. 8, 1983) (quoting CERCLA legislative history).
This is not inconsistent with the long-standing provision on deletion in
the 1985 NCP, which provides that "sites
start 55 FR 8700
may be deleted from or recate^orize^on the NPL where_no_^urthe£^es£onse_^s
a££ro£riate." 40 CFR 300.66(c)(7)(1985) (emphasis added). Thus even if no
further action is planned at a five-year review site, recategorization is as
appropriate a means of recognizing that status as is deletion. Further,
deletion will be considered as part of the review.
EPA also does not view this policy for five-year review sites as
inconsistent with EPA policy on deletions. The criteria for deletion in
300.425(e) provide that "releases ma^ be deleted from ... the NPL where no
further response is appropriate," thereby providing considerable flexibility
to the Administrator. Further, the rule provides that EPA shall not delete a
site from the NPL until the state in which the release was located has
concurred, and the public has been afforded an opportunity to comment on the
proposed deletion. Thus, the decision to delete is not an automatic one by
EPA, but rather is decided as part of a formal public process. It is
similarly important to note that a "site awaiting deletion" in the new
Construction Completion category will not necessarily be deleted automatically
upon recategorization.
One commenter stated that the first five-year review should not occur
until five years after the operation and maintenance phase of the response
action is complete. EPA disagrees with this comment; some sites will require
See "Performance of Five-Year Reviews and Their Relationship to the Deletion
of Sites from the National Priorities List (NPL)(Superfund Management Review:
Recommendation No. 2), Memorandum from Jonathan Z. Cannon, Acting Assistant
Administrator, OSWER, to Regional Administrators (October 30, 1989); and
"Update to the 'Procedures for Completion and Deletion of National Priorities
List Sites' -- Guidance Document Regarding the Performance of Five-Year
Reviews (Superfund Management Review: Recommendation No. 2)," Memorandum from
Henry L. Longest II, Director, Office of Emergency and Remedial Response, to
Regional Waste Management Division Directors (OSWER Directive No. 9320.2-3B,
December 29, 1989) .
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operation and maintenance indefinitely, and thus adoption of such an approach
would result in no five-year review. Further, CERCLA section 121(c) calls for
reviews within five years of the "initiation" -- not completion --of the
remedial action. EPA is currently developing a policy regarding timing and
conduct of five-year reviews.
Another commenter, though strongly favoring the creation of a new NPL
category, recommended that EPA create two new categories: "remedy in long-
term operation and maintenance", and "sites awaiting delisting". The
commenter asserted that the public would understand such terms more easily
than "Construction Completion". EPA disagrees with this comment because the
phrase "long-term operation and maintenance" may cause more confusion for the
public. EPA believes the commenter inadvertently confused two concepts:
"operation and maintenance" and "LTRA." Many NPL sites will require operation
and maintenance following deletion from the NPL in order to maintain the
protectiveness of the remedy (e.g. cutting grass or maintaining monitoring
wells), even though specified cleanup standards have been achieved and
criteria for deletion have been met.
An LTRA, on the other hand, is an ongoing remedial action which has not
yet achieved the cleanup standards in the ROD. It too may require operation
and maintenance after achieving these standards, and after deletion of the
site from the NPL. EPA will place an LTRA site in the Construction Completion
category based on approval of an interim Close Out Report. EPA will finalize
or amend the report when the remedy has achieved cleanup levels specified in
the ROD(s). The LTRA will then be categorized on the NPL as either a site
awaiting deletion or a five-year review site.
To minimize public confusion and administrative burden, EPA will create
at present only one new category. However, EPA plans to denote in the
category whether a site is: (a) an LTRA, (b) a site awaiting deletion, or (c)
a "five-year review" site awaiting review and/or deletion. (Note that LTRA
sites may be placed in the five-year review category upon attainment of the
final remediation goals.)
Final rule: Proposed ' 300.425 is revised as follows:
1. A new section has been added to the final rule,
300.425(d)(6), to reflect EPA's long-standing discretion to establish
categories of sites on the NPL: "Releases may be categorized on the NPL when
deemed appropriate by EPA."
2. In ' 300.425(e) (2), the timeframe for state review of notices of
intent to delete has been changed to 30 working days (see preamble to
300.515(h)(3), "State review of EPA-lead documents)."
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SECTION 300.430. Remedial investigation/feasibility study and selection of
remedy
Introduction
Today EPA is promulgating revisions to the remedial investigation
(RI)/feasibility study (FS) and selection of remedy sections of the 1985 NCP.
While the framework of this portion of the regulation remains largely as
proposed on December 21, 1988, significant changes have been made to respond
to comments received and to articulate more clearly the remedy selection goal,
expectations and process EPA intends to employ in implementing the Superfund
program.
The remedy selection process promulgated today is founded on CERCLA's
overarching mandate to protect human health and the environment. This
approach emphasizes solutions that can ensure reliable protection over time.
Today's rule promotes the aggressive use of treatment technologies to achieve
reliable remedies while acknowledging the practical limitations on the use of
treatment.
In this approach, EPA seeks to encompass the many statutory mandates
while emphasizing the statutory preference for permanent solutions and use of
treatment technologies. The approach is tempered by practicability to ensure
that the remedies selected are appropriate and that the program responds to
the threats posed by the worst toxic waste sites across the nation. Today's
requirements for selecting remedies further provide a uniform framework to
promote consistency in decision-making.
Today's regulation establishes a process that allows consideration and
balancing of site-specific factors in remedy selection. EPA has used this
type of decision-making process to select CERCLA remedial actions since the
inception of the Superfund program. Revisions contained in today's rule
modify the approach by incorporating the new requirements of the 1986
amendments to CERCLA into existing procedures. This approach relies on a
process that examines site characteristics and alternative approaches for
remediating site problems. This process evaluates remedial alternatives using
nine criteria which are based on CERCLA's mandates to determine advantages and
disadvantages of the alternatives, thus identifying site-specific trade-offs
between options. These trade-offs are balanced in a risk management judgment
as to which alternative provides the most appropriate solution for the site
problem.
In response to comments requesting further clarification and structure
in the remedy selection process, EPA has made changes to provide better
guidance on the types of remedies that EPA expects to result from the process;
to add more structure to the process by specifying the functional categories
of the nine criteria in the rule; and to indicate which criteria are to be
emphasized in the balancing process. EPA believes this process ensures the
selection of remedial actions that fulfill statutory requirements to protect
human health and the environment, comply with ARARs, be cost-effective, and
utilize permanent solutions and alternative treatment technologies or resource
recovery technologies to the maximum extent practicable. Further, this
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process considers the full range of factors pertinent to remedy selection and
provides the flexibility necessary and appropriate to ensure that remedial
actions selected are sensible, reliable solutions for identified site
problems.
start 55 FR 8701
The approach promulgated in today's rule was supported by numerous
commenters. Several expressed the view that alternate remedy selection
methods presented in the proposal were inappropriate or inferior to the
promulgated approach. Some commenters noted that the promulgated approach
includes important criteria that the other approaches do not.
Two distinct groups of commenters who have sharply contrasting views on
the goal of the Superfund program opposed the proposed approach that is
promulgated today. One group of commenters believes EPA should establish a
remedy selection process that adopts as its goal full site restoration and
treatment of all material to the extent technically feasible. This approach
would limit consideration of cost to the selection of the less expensive of
comparably effective treatment technologies. Under this approach, methods of
protection that rely on control of exposure (i.e., engineering controls such
as capping or other containment systems and institutional controls) could only
be used when treatment was technically infeasible. Several of these
commenters expressed the view that remedy selection should be more structured
and supported either the sequential decision-making approach or the point of
departure strategy for remedy selection presented in the proposal.
The other group of commenters critical of the proposed approach believes
the Superfund program should seek to achieve protection primarily by
controlling exposure to current risks through use of engineering and
institutional controls. Treatment would be used only if other controls are
not expected to be reliable or greater protection can be achieved through
treatment without a significant increase in cost. These commenters generally
supported the use of a cost-effectiveness screen in site-specific balancing or
the site stabilization strategy for remedy selection presented in the
proposal.
The approach EPA promulgates today sets a course for the Superfund
program between the two ends of the spectrum reflected in these comments. EPA
is establishing as its goal remedial actions that protect human health and the
environment, that maintain protection over time, and that minimize untreated
waste.
This goal reflects CERCLA's preference for achieving protection through
the use of treatment technologies that destroy or reduce the inherent hazards
posed by wastes and result in remedies that are highly reliable over time.
The purpose of treatment in the Superfund program is to significantly reduce
the toxicity and/or mobility of the contaminants posing a significant threat
(i.e., "contaminants of concern") wherever practicable to reduce the need for
long-term management of hazardous material. EPA will seek to reduce hazards
(i.e., toxicity and/or mobility) to levels that ensure that contaminated
material remaining on-site can be reliably controlled over time through
engineering and/or institutional controls.
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Further, the Superfund program also uses as a guideline for effective
treatment the range of 90 to 99 percent reduction in the concentration or
mobility of contaminants of concern (see preamble discussion below on
"reduction of toxicity, mobility or volume" under ' 300.430(e)(9)). Although
it is most important that treatment technologies achieve the remediation goals
developed specifically for each site (which may be greater or less than the
treatment guidelines), EPA believes that, in general, treatment technologies
or treatment trains that cannot achieve this level of performance on a
consistent basis are not sufficiently effective and generally will not be
appropriate. EPA believes this 90 to 99 percent reduction treatment guideline
allows for the use of an array of technologies and will not preclude the
introduction of innovative technologies into the range of effective
technologies. EPA believes the remedy selection process should encourage
diversification of the range of treatment technologies available for
addressing hazardous substances so that the program continues to find more
effective, safer, and less costly ways of reducing the hazards posed by the
various and often complex materials encountered at Superfund sites.
Along with the program goal, EPA is establishing expectations regarding
the extent to which treatment is likely to be practicable for certain types of
site situations and problems frequently encountered by the Superfund program.
These expectations indicate that EPA intends to place priority on treating
materials that pose the principal threats at a given site. The expectations
also acknowledge that certain technological, economic and implementation
factors may make treatment impracticable for certain types of site problems.
Experience has shown that in such situations, remedies that rely on control of
exposure through engineering and/or institutional controls to provide
protection generally will be appropriate.
The goal and expectations should be considered when making site-specific
determinations of the maximum extent to which permanent solutions and
treatment can be practicably utilized in a cost-effective manner. Another
important part of this framework is the range of alternatives EPA will
consider as possible cleanup options. This range reflects the principle that
protection of human health and the environment can be achieved through a
variety of methods, including treatment, engineering and/or institutional
controls and through combinations of such methods. Today's rule reflects the
statutory preference for achieving protection of human health and the
environment through treatment by emphasizing the development of alternatives
that employ treatment as their principal element.
This framework for developing alternatives is one of the major changes
to the 1985 NCP which called for the development of alternatives that do not
attain, attain, and exceed ARARs, as well as an off-site and no action
alternative. The 1985 framework was premised on the implicit assumptions that
alternatives would share the same ARARs and that the ability to meet or exceed
those requirements corresponded to different levels of protection. Program
experience has shown that while alternatives may share chemical- and location-
specific ARARs, generally each alternative will have a unique set of action-
specific requirements. Additionally, it is now clear that ARARs do not by
themselves necessarily define protectiveness. First, ARARs do not exist for
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every contaminant, location, or waste management activity that may be
encountered or undertaken at a CERCLA site. Second, in those circumstances
where multiple contaminants are present, the cumulative risks posed by the
potential additivity of the constituents may require cleanup levels for
individual contaminants to be more stringent than ARARs to ensure protection
at the site. Finally, determining whether a remedy is protective of human
health and the environment also requires consideration of the acceptability of
any short-term or cross-media impacts that may be posed during implementation
of a remedial action.
Another major revision to the 1985 NCP promulgated today is the
establishment of nine criteria used for the detailed analysis of alternatives
that serve as the basis for the remedy selection decision. These nine
criteria encompass statutory requirements (specifically the long-term
effectiveness factors that must be assessed under CERCLA section 121(b)(1)(A-
G)), and include other technical and policy
start 55 FR 8702
considerations that have proven to be important for selecting among remedial
alternatives. The various criteria have been categorized according to their
functions in the remedy selection process as threshold, balancing and
modifying criteria. This designation demonstrates that protection of human
health and the environment will not be compromised by other factors, including
cost. Revisions also clarify that trade-offs among alternatives with respect
to the long-term effectiveness and permanence they afford and the reductions
in toxicity, mobility, or volume they achieve through treatment are the most
important considerations in the balancing step by which the remedy is
selected.
Name: Section 300.430(a)(1). Program goal, program management principles and
expectations.
Proposed rule: The preamble to the proposed rule described management
principles which EPA intends to apply to the Superfund program and certain
expectations regarding the types of remedies that EPA has found to be most
appropriate for different types of waste (53 FR 51422). These expectations
were developed based on both the preferences and mandates expressed in CERCLA
section 121 as well as EPA's practical experience in trying to meet those
preferences and mandates. The preamble declared EPA's intent to focus
available resources on selection of protective remedies that provide reliable,
effective response over the long-term. The expectations envision treatment of
the principal threats posed by a site, with priority placed on treating waste
that is highly toxic, highly mobile, or liquid; and containment of waste
contaminated at low levels, waste technically infeasible to treat and large
volumes of waste.
Also included in the expectations was the concept that contaminated
ground waters will be returned to their beneficial uses wherever practicable,
within a timeframe that is reasonable given the particular circumstances of
the site. The preamble explained that institutional controls could be used,
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as appropriate, to prevent exposures to releases of hazardous substances
during remedy implementation and to supplement engineering controls. The
preamble also stated that the use of institutional controls should not
substitute for active response measures as the sole remedy unless such active
measures are determined not to be practicable.
The preamble also described three program management principles
developed from program experience to promote the efficiency and effectiveness
of the remedial response process. The preamble stated EPA's intent to balance
the desire of definitive site characterization and alternatives analysis with
a bias for initiating response actions necessary or appropriate to eliminate,
reduce or control hazards posed by a site as early as possible. The preamble
emphasized the principle of streamlining, which EPA would apply in managing
the Superfund program as a whole and in conducting individual remedial action
projects. The preamble explained that the bias for action and principle of
streamlining may appropriately be considered throughout the life of a remedial
project but begin to be evaluated as site management planning is initiated.
Site management planning is a dynamic, ongoing and informal strategic planning
effort that generally starts as soon as sites are proposed for inclusion on
the NPL and continues through the RI/FS and remedy selection process and the
remedial design and remedial action phases, to deletion from the NPL.
Response to comments: EPA has placed the program goal, expectations, and
management principles into the rule in response to the strong support these
principles received from commenters. By including these in the rule, EPA
believes the regulation better articulates the objectives of the program. EPA
also believes that placing them in the rule itself will ensure that the
principles and expectations, although not binding, will remain a part of the
codified rule and will not merely be detached preamble language. This will
facilitate their use and identification by implementing officials and the
public. Specific comments and changes to the rule are discussed below.
1. Program goal. EPA has added a statement of the national goal of the
remedy selection process to the final regulation. The goal as expressed in
today's rule is to select remedies that will be protective of human health and
the environment, that will maintain protection over time and that will
minimize untreated waste. Although EPA received no comment specifically
addressing a national remedy selection goal, comments on other issues
reflected different interpretations of statutory mandates. EPA is
articulating a goal in order to reflect the effort of the Superfund program to
select remedies that are protective of human health and the environment in the
long-term and minimize untreated waste. The concept of this goal is to be
maintained throughout the remedy selection process. The evaluation and remedy
selection performed using the nine criteria determine the extent to which this
goal is satisfied and the extent to which permanent solutions and treatment
are practicable.
2. Expectations. EPA has decided to add to the final regulation the
program expectations which appeared only in the preamble to the proposed rule.
EPA takes this action in response to numerous comments expressing strong
support for the principles underlying the expectations and requesting EPA to
incorporate the expectations into the regulation. EPA has placed the
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expectations in the rule to inform the public of the types of remedies that
EPA has achieved, and anticipates achieving, for certain types of sites.
These expectations are not, however, binding requirements. Rather, the
expectations are intended to share collected experience to guide those
developing cleanup options. For example, EPA's experience that highly mobile
waste generally requires treatment may help to guide EPA to focus the detailed
analysis on treatment alternatives, as compared to containment alternatives.
In effect, the expectations allow implementing officials to profit from prior
EPA learning and thereby avoid duplicative or unnecessary efforts. However,
the fact that a proposed remedy may be consistent with the expectations does
not constitute sufficient grounds for the selection of that remedial
alternative. All remedy selection decisions must be based on an analysis
using the nine criteria.
Today's rule also contains an expectation on the use of innovative
technologies that EPA developed in response to numerous comments calling for
increased emphasis on the diversification of treatment technologies used in
site remediation. EPA supports such diversification and expects that it will
generally be appropriate to investigate remedial alternatives that use
innovative technologies when such technology offers the potential for
comparable or superior treatment performance or implementability, fewer or
lesser adverse impacts than other available approaches, or lower costs for
similar levels of performance than demonstrated technologies.
Several commenters focused on the need for flexibility and discretion in
complying with the various mandates of CERCLA. These commenters supported the
expectations discussed by EPA in the preamble to the proposed rule as being
consistent with these needs. EPA received the greatest support for the
expectations concerning the use of treatment technologies.
start 55 FR 8703
EPA expects that treatment will be the preferred means by which to
address the principal threats posed by a site, wherever practicable.
Principal threats are characterized as waste that cannot be reliably
controlled in place, such as liquids, highly mobile materials (e.g.,
solvents), and high concentrations of toxic compounds (e.g., several orders of
magnitude above levels that allow for unrestricted use and unlimited
exposure). Treatment is less likely to be practicable when sites have large
volumes of low concentrations of material, or when the waste is very difficult
to handle and treat (e.g., mixed waste of widely varying composition).
Specific situations that may limit the use of treatment include sites where:
(1) treatment technologies are not technically feasible or are not available
within a reasonable timeframe; (2) the extraordinary size or complexity of a
site makes implementation of treatment technologies impracticable; (3)
implementation of a treatment-based remedy would result in greater overall
risk to human health and the environment due to risks posed to workers or the
surrounding community during implementation; or (4) severe effects across
environmental media resulting from implementation would occur.
In addition, commenters agreed with EPA that solutions often will
involve a combination of methods of providing protection, including treatment
and engineering controls and institutional controls. One commenter stated his
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belief that these expectations embody the extent to which treatment can
practicably be utilized in a cost-effective manner on a site-specific basis.
Some commenters concluded that the presence of the expectations in the
regulation would enhance private party participation in cleanups by relieving
the burden of persuading EPA in each situation that such expectations, or
remedies consistent with the expectations, are reasonable and in compliance
with CERCLA.
Another commenter, while supporting the expectations, expressed concern
that the regulation as proposed would not adequately ensure that the
expectations would be achieved. EPA has concluded that the expectations will
be of the most use if maintained as general principles to assist in flexible,
site-specific decision-making. The expectations may not be appropriate in all
cases. By stating "expectations" rather than issuing strict rules, EPA
believes that critical flexibility can be retained in the remedy selection
process.
This commenter and one other urged the addition of an expectation that
treatment residuals and contaminated soils near health-based levels will be
controlled through containment rather than treatment. The two commenters
recommended language expressing their views. Although EPA generally concurs
with the suggested expectation, EPA has not added this specific expectation to
the rule. EPA believes the expectations in today's rule generally address the
types of waste mentioned by this commenter.
One commenter urged elimination of the expectation that treatment is
less likely to be practicable where sites have large volumes of low
concentrations of material, or where the waste is very difficult to handle and
treat. This commenter argued that the expectations combined with the program
management principle of streamlining could be used to avoid studying
alternatives in detail and could provide industries with significant
incentives to ignore the "overarching mandate" to protect human health and the
environment. In response, EPA does not intend or believe that the
expectations will be used to ignore practicable, protective alternatives. In
any event, EPA is required by statute to select protective remedies, which may
include those that involve treatment (preferred) and those that do not.
In essence, EPA interprets this commenter's concern to be that remedies
that do not employ treatment cannot be protective of human health and the
environment. Today EPA confirms the statement in the preamble to the proposal
that the overarching mandate of the Superfund program is to protect human
health and the environment from the current and potential threats posed by
uncontrolled hazardous waste sites. This mandate applies to all remedial
actions and cannot be waived. Consistent with the program expectations, the
mandate for remedies that protect human health and the environment can be
fulfilled through a variety or combination of means. These means include the
recycling or the destruction, detoxification, or immobilization of
contaminants through the application of treatment technologies. Protection
can also be provided in some cases by controlling exposure to contaminants
through engineering controls (such as containment) and/or institutional
controls which prevent access to contaminated areas. However, consistent with
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CERCLA, treatment remains the preferred method of attaining protectiveness,
wherever practicable.
3. Management principles. Many commenters urged greater emphasis on the
program management principles of a bias for action and streamlining that
appeared in the preamble to the proposed rule. These commenters generally
believe application of these principles would expedite cleanups and maximize
reductions in risks to human health and the environment.
Many commenters advocated applying the streamlining principle to screen
unnecessary/duplicative/impracticable remedial action alternatives and to
ensure that the detail of the RI/FS for a site is commensurate with the
overall risk posed by the site. Several commenters stated that an application
of the bias for action principle would encourage early action to prevent
further migration of contamination pending the completed remedial action.
Consistent with this principle, a commenter suggested revising the first
sentence of ' 300.430(a) to state that the purpose of the remedial action
process is to reduce risk "as soon as site data and information make it
possible to do so." EPA agrees with this recommendation and has added this
language in a new second sentence in ' 300.430(a).
EPA has incorporated the program management principles into today's rule
in response to the supportive comments received. EPA believes placement of
these principles into today's rule promotes making sites safer and cleaner as
soon as possible, controlling acute threats, and addressing the worst problems
first.
One commenter argued that EPA lacks the requisite statutory authority to
promulgate principles such as a bias for action. In response, EPA was given
considerable discretion in CERCLA section 104(a)(1) to decide what action to
take in response to releases of hazardous substances. In the NCP, EPA has set
out provisions for taking various types of removal and remedial actions.
Thus, it is clearly within EPA's discretion to decide how to balance the need
for prompt, early actions, against the need for definitive site
characterization. The bias for prompt action is wholly consistent with
Congress' concern that CERCLA sites be addressed in an expeditious manner.
Indeed, in CERCLA section 121(d)(4)(A), Congress specifically contemplated
early or interim actions, by allowing EPA to waive ARARs in such cases.
Further, a bias for action is consistent with EPA's long-standing policy of
responding by distinct operable units at
start 55 FR 8704
sites as appropriate, rather than waiting to take one consolidated response
action. The 1985 NCP originally codified this policy that remedial actions
may be staged through the use of operable units.
EPA received comments urging the Agency to strengthen its commitment to
early site action through expanded use of removal actions at NPL sites without
foreclosing more extensive remedial actions. In response, EPA encourages the
taking of early actions, under removal or remedial authority, to abate the
immediate threat to human health and the environment. Early actions using
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remedial authorities are initiated as operable units. In deciding between
using removal and remedial authorities, the lead agency should consider the
following: (i) the criteria and requirements for taking removal actions in
today's rule; (ii) the statutory limitations on removal actions and the
criteria for waiving those limitations; (iii) the availability of resources;
and (iv) the urgency of the site problem.
EPA expects to take early action at sites where appropriate, and to
remediate sites in phases using operable units as early actions to eliminate,
reduce or control the hazards posed by a site or to expedite the completion of
total site cleanup. In deciding whether to initiate early actions, EPA must
balance the desire to definitively characterize site risks and analyze
alternative remedial approaches for addressing those threats in great detail
with the desire to implement protective measures quickly. Consistent with
today's management principles, EPA intends to perform this balancing with a
bias for initiating response actions necessary or appropriate to eliminate,
reduce, or control hazards posed by a site as early as possible. EPA
promotes the responsiveness and efficiency of the Superfund program by
encouraging action prior to or concurrent with conduct of an RI/FS as
information is sufficient to support remedy selection. These actions may be
taken under removal or remedial authorities, as appropriate.
To implement an early action under remedial authority, an operable unit
for which an interim action is appropriate is identified. Data sufficient to
support the interim action decision is extracted from the ongoing RI/FS that
is underway for the site or final operable unit and an appropriate set of
alternatives is evaluated. Few alternatives, and in some cases perhaps only
one, should be developed for interim actions. A completed baseline risk
assessment generally will not be available or necessary to justify an interim
action. Qualitative risk information should be organized that demonstrates
that the action is necessary to stabilize the site, prevent further
degradation, or achieve significant risk reduction quickly. Supporting data,
including risk information, and the alternatives analysis can be documented in
a focused RI/FS. However, in cases where the relevant data can be summarized
briefly and the alternatives are few and straightforward, it may be adequate
and more appropriate to document this supporting information in the proposed
plan that is issued for public comment. This information should also be
summarized in the ROD. While the documentation of interim action decisions
may be more streamlined than for final actions, all public, state, and natural
resource trustee participation procedures specified elsewhere in this rule
must be followed for such actions.
Several commenters endorsed placing the expectations and management
principles into the rule to avoid collection of unnecessary data and
evaluation of too wide a range of alternatives. Without providing a specific
example, a commenter noted that many past Superfund cleanups have experienced
the opposite of a bias for action by including unnecessary and costly data
collection and report preparation without reaching conclusions on the
recommended site remediation.
EPA agrees that site-specific data needs, the evaluation of alternatives
and documentation of the selected remedy should reflect the scope and
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complexity of the site problems being addressed. This principle, derived from
the streamlining principle discussed in the preamble to the proposal, has been
incorporated into today's rule. The goal, expectations, and management
principles incorporated into the rule, promote the tailoring of investigatory
actions to specific site needs.
On a project-specific basis, recommendations to ensure that the RI/FS
and remedy selection process is conducted as effectively and efficiently as
possible include:
1. Focusing the remedial analysis to collect only additional data needed
to develop and evaluate alternatives and to support design.
2. Focusing the alternative development and screening step to identify
an appropriate number of potentially effective and implementable alternatives
to be analyzed in detail. Typically, a limited number of alternatives will be
evaluated that are focused to the scope of the response action planned.
3. Tailoring the level of detail of the analysis of the nine evaluation
criteria (see below) to the scope and complexity of the action. The analysis
for an operable unit may well be less rigorous than that for a comprehensive
remedial action designed to address all site problems.
4. Tailoring selection and documentation of the remedy based on the
limited scope or complexity of the site problem and remedy.
5. Accelerating contracting procedures and collecting samples necessary
for remedial design during the public comment period.
Although the level of effort and extent of analysis required for the
RI/FS will vary on a site-specific basis, the procedures for remedy selection
do not vary by site. The lead agency is responsible for meeting procedural
requirements, including support agency participation, soliciting public
comment, developing an administrative record, and preparing a record of
decision.
A more streamlined analysis during an RI/FS may be particularly
appropriate in the following circumstances:
1. Site problems are straightforward such that it would be inappropriate
to develop a full range of alternatives. For example, site problems may only
involve a single group of chemicals that can only be addressed in a limited
number of ways, or site characteristics (e.g., fractured bedrock) may be such
that available options are limited. To the extent that obvious,
straightforward problems exist, they may create opportunities to take actions
quickly that will afford significant risk reduction.
2. The need for prompt action to bring the site under initial control
outweighs the need to examine all potentially appropriate alternatives.
3. ARARs, guidance, or program precedent indicate a limited range of
appropriate response alternatives (e.g., PCB standards for contaminated soils,
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Superfund Drum and Tank Guidance, Best Demonstrated Available Technology
(BDAT) requirements).
4. Many alternatives are clearly impracticable for a site from the
outset due to severe implementability problems or prohibitive costs (e.g.,
complete treatment of an entire large municipal landfill) and need not be
studied in detail.
5. No further action or extremely limited action will be required to
ensure protection of human health and the environment over time. This
situation will most often occur where a removal measure previously has been
taken.
start 55 FR 8705
Comments varied in their support for the proposed formalization of the
operable unit concept. Some commenters encouraged EPA to make full use of the
operable unit concept because it could prevent the worsening of some site
problems. Other commenters argued against the use of operable units, stating
that Congress intended cleanups to focus on sites, not on artificial
subdivisions of sites.
The 1985 NCP originally codified the concept that remedial actions may
be staged through the use of operable units (former NCP ' 300.68(c)).
Operable units are discrete actions that comprise incremental steps toward the
final remedy. Although EPA agrees that total site remediation is the ultimate
objective, often it is necessary and appropriate, particularly for complex
sites, to divide the site or site problems for effective site management and
early action. Operable units may be actions that completely address a
geographical portion of a site or a specific site problem (e.g., drums and
tanks, contaminated ground water) or the entire site. They may include
interim actions (e.g., pumping and treating of ground water to retard plume
migration) that must be followed by subsequent actions which fully address the
scope of the problem (e.g., final ground water operable unit that defines the
remediation level and restoration timeframe). Such operable units may be
taken in response to a pressing problem that will worsen if not addressed, or
because there is an opportunity to undertake a limited action that will
achieve significant risk reduction quickly. Consistent with the bias for
action principle in today's rule, EPA will implement remedial actions in
phases as appropriate using operable units to effectively manage site problems
or expedite the reduction of risk posed by the site.
One commenter perceived operable units as a source of inefficiency.
This commenter criticized the extended investigative activities associated
with the production of multiple and overlapping RI/FSs on operable units for a
single site. The commenter advocated completion of RI/FSs within eighteen
months, absent unusual conditions, and implementing operable units only where
necessary to reduce an immediate risk to human health and the environment.
This latter point was supported by another commenter who feared that use of an
operable unit may provide a false impression that the project is progressing
rapidly and may result in greater cost due to duplication of work.
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In response, EPA has established as a matter of policy the goal of
completing RI/FSs (i.e., through ROD signature) generally within 24 months
after initiation. EPA agrees that duplication of efforts on RI/FSs should be
avoided. However, EPA supports the operable unit concept as an efficient
method of achieving safer and cleaner sites more quickly while striving to
implement total site cleanups. Although the selection of each operable unit
must be supported with sufficient site data and alternatives analyses, EPA
allows the ROD for the operable unit to use data and analyses collected from
any RI/FS performed for the site. No duplication of investigatory or
analytical efforts should occur when selecting an operable unit for a site.
Although supporting the operable unit concept, one commenter argued that
unless EPA alleviates the administrative burdens placed on an operable unit,
no bias for action will be realized. Another commenter requested
clarification of the procedures required to support the initiation of action
prior to completion of the RI/FS for the entire site. This commenter
cautioned EPA that encouragement of early action could result in actions being
taken without a proper understanding of the site. According to a different
commenter, application of the streamlining principle could result in
additional and unnecessary costs to potential responsible parties by
accelerating contracting procedures and collecting samples necessary for
remedial design during the public comment period on the RI/FS and proposed
plan. This commenter feared that the samples taken before remedy selection
may prove irrelevant to the final selected remedy.
Similarly, some commenters requested guidance on operable units and more
specificity on implementing the streamlining concept. Some commenters
suggested phased RI/FSs and limiting the collection of data. One commenter
added that a properly implemented streamlining approach could result in a more
focused RI/FS and would minimize the collection of unnecessary data. This
commenter cautioned, however, that poorly implemented streamlining could
result in insufficient data upon which to base remedy selection, shortened
time frames for settlement discussions, or actions that are inconsistent with
later remedial actions. In addition, another commenter noted that
documentation for the remedial action must be sufficient to support a legal
challenge.
EPA acknowledges that the program management principles in today's rule
are neither binding nor appropriate in every case; they must be applied as
appropriate. The streamlining principle supports data collection and
alternatives analyses commensurate with the scope and complexity of the site
problem being addressed. The principles focus site investigations and
alternatives analyses while maintaining the requirement that sufficient
information be obtained for sound decision-making. The ROD for an interim
remedy implemented as an operable unit does not necessarily require a separate
RI/FS but instead can summarize data collected to date that supports that
decision. This procedure provides an adequate basis on which to select an
interim remedy and thus safeguards against taking premature action and avoids
duplication among RI/FSs performed for the site. For guidance on documenting
remedial action decisions, including operable units, see the Interim Final
Guidance on Preparing Superfund Decision Documents (June 1989, OSWER Directive
9355.3-02).
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Some commenters focused on interim actions, implemented as operable
units. These commenters stressed the important role of interim action
operable units in furthering the bias for action. According to these
commenters, EPA's bias for action should be codified in the regulation to
communicate that interim measures may be a legitimate component of the remedy
selection process. Another commenter agreed that greater emphasis is needed
on the importance of interim measures and added that these interim measures
should be consistent with the remedial solution likely to be selected.
EPA encourages the implementation of interim action operable units, as
appropriate, to prevent exposure or control risks posed by a site. Further
actions will be taken at the site, as appropriate, to eliminate or reduce the
risks posed. EPA is adding to today's rule a statement to clarify that
operable units, including interim action operable units, must neither be
inconsistent with nor preclude implementation of the expected final remedy.
One commenter supported the use of interim measures, when appropriate,
and argued that the implementation of these measures should not be made
contingent on the selection of a final remedy. According to this commenter,
the RI/FS process should consider the interim action as one of the possible
remedial alternatives to achieve the long-term site goals. Similarly, another
commenter stated that it strongly believes that EPA should use its available
funds to achieve cleanup at
start 55 FR 8706
the greatest number of sites, thereby saving resources and reducing overall
risks, rather than trying to attain extremely low levels of risk at a smaller
number of sites.
While the bias for action promotes multiple actions of limited scale,
the program's ultimate goal continues to be to implement final remedies at
sites. The scoping section of today's rule has been amended to make clear
that the lead agency shall conduct strategic planning to identify the optimal
set and sequence of actions necessary to address the site problems. Such
actions may include, as appropriate, removal actions, interim actions and
other types of operable units. Site management planning is a dynamic,
ongoing, and informal strategic planning effort that generally starts as soon
as sites are proposed for inclusion on the NPL and continues through the RI/FS
and remedy selection process and the remedial design and remedial action
phases, to deletion from the NPL.
This strategic planning activity is the means by which the lead and
support agencies determine the types of actions and/or analyses necessary or
appropriate at a given site and the optimal timing of those actions. At the
RI/FS stage, this effort involves review of existing site information,
consideration of current and potential risks the site poses to human health
and the environment, an assessment of future data needs, understanding of
inherent uncertainties in the process, priorities among site problems and the
program as a whole, and prior program experience. The focus of the strategic
planning is on taking action at the site as early as site data and information
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make it possible to do so.
Final rule: Today's rule includes at ' 300.430(a)(1) EPA's goal for remedial
actions to protect human health and the environment, maintain that protection
over time, and minimize the amount of untreated waste. In addition, the rule
also sets out expectations regarding the extent to which treatment is likely
to be practicable for certain types of situations and problems frequently
encountered by the Superfund program. These expectations place priority on
treating materials that pose the principal threats at a given site. The
expectations also acknowledge that certain technological, economic, and
implementation factors make treatment impracticable for certain types of site
problems and that other types of controls may be most effective in these
situations. The bias for action and streamlining principles are also printed
in the rule.
Name: Section 300.430(a)(1). Use of institutional controls.
Proposed rule: Proposed ' 300.430(e)(3)(ii) directed that, as appropriate,
one or more alternatives shall be developed that are based on engineering
controls, such as containment that prevents exposure to hazardous substances,
and, as necessary, institutional controls, which limit human activities at or
near facilities, to protect health and environment and assure continued
effectiveness of response. The preamble to the proposed rule gave
"expectations" for remedies, explaining that institutional controls may be
used as a supplement to engineering controls over time but should not
substitute for active response measures as the sole remedy unless active
response measures are not practicable, as determined based on the balancing of
the trade-offs among alternatives that is conducted during the selection of
the remedy. (53 FR 51423) .
Response to comments: Several commenters supported the proposal as is,
pointing out that there are situations where institutional controls can be a
primary component of remedial action either because treatment is not
practicable (as for large volumes of low-toxicity waste) or because natural
attenuation will restore a resource in the same time as active remediation.
Several other commenters disagreed with the proposal because they
believe that institutional controls are not reliable and are not permitted
under the statute as active, permanent remedies, except under limited
circumstances. One commenter maintained that institutional controls should
never be used except as an interim measure. Another commenter felt that use
of institutional controls as the sole remedy could lead to institutionalized
pollution, and should only be used if state ARARs are not violated or cleanup
is not feasible. Similarly, one commenter feared that the proposal could lead
to well restriction areas or the like; the commenter also asserted that only
state or local governments, not EPA, have the authority to restrict water use.
EPA agrees that institutional controls should not substitute for more
active response measures that actually reduce, minimize, or eliminate
contamination unless such measures are not practicable, as determined by the
remedy selection criteria. Examples of institutional controls, which
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generally limit human activities at or near facilities where hazardous
substances, pollutants, or contaminants exist or will remain on-site, include
land and resource (e.g., water) use and deed restrictions, well-drilling
prohibitions, building permits, and well use advisories and deed notices. EPA
believes, however, that institutional controls have a valid role in
remediation and are allowed under CERCLA (e.g., section 121(d)(2)(B)(ii)
appears to contemplate such controls). Institutional controls are a necessary
supplement when some waste is left in place, as it is in most response
actions. Also, in some circumstances where the balancing of trade-offs among
alternatives during the selection of remedy process indicates no practicable
way to actively remediate a site, institutional controls such as deed
restrictions or well-drilling prohibitions are the only means available to
provide protection of human health. Where institutional controls are used as
the sole remedy, special precautions must be made to ensure that the controls
are reliable. Further, recognizing that EPA may not have the authority to
implement institutional controls at a site,
300.510(c)(1) has been revised to require states to assure that
institutional controls implemented as part of the remedial action are in
place, reliable and will remain in place after initiation of operation and
maintenance (see preamble to ' 300.510(c)(1), "State assurances").
Several other commenters recommended revisions to enlarge the scope or
availability of institutional controls. These commenters wanted the rule to
allow institutional controls to be used as a key component of a remedy
whenever they provide similar protection to treatment or other active remedies
at much lower cost. The commenters suggested that such controls may be the
only cost-effective, practicable remedy at small, isolated, and stable sites,
and that such controls would be viable at many federal facilities.
EPA disagrees with suggested revisions to the NCP that would expand or
encourage the use of institutional controls in lieu of active remediation
measures. CERCLA section 121 states Congress' preference for treatment and
permanent remedies, as opposed to simply prevention of exposure through legal
controls. The evaluation of the nine criteria (' 300.430(f) (1) (ii)),
including cost and other factors, determines the practicability of active
measures (i.e., treatment and engineering controls) and the degree to which
institutional controls will be included as part of the remedy.
Several commenters suggested that institutional controls be given a more
explicit role in the rule through providing criteria for their use, explicitly
start 55 FR 8707
allowing for their use in interim actions, or providing that remedies with
institutional controls be considered in the detailed analysis. EPA believes
that the discussion of an expectation concerning institutional controls in the
rule is the appropriate level of detail for guidance in the NCP. Additional,
more specific guidance may be developed later, if necessary.
Final rule: EPA has added an expectation on use of institutional controls in
300.430(a) (1) (iii) (D) . EPA is promulgating
300.430(e)(3)(ii) as proposed.
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Name: Section 300.430(b). Scoping.
Existing rule: The 1985 NCP incorporated the scoping section within the
remedial investigation (RI) section of the rule
(' 300.68(e)). Under that section, scoping served as a basis for requesting
funding for removal actions and for the remedial investigation and feasibility
study (RI/FS). The initial analysis performed in scoping indicates the extent
to which the release or threat of release may pose a threat to public health
or welfare or the environment, indicates the types of removal measures and/or
remedial measures suitable to abate the threat, and establishes priorities for
implementation. A preliminary determination of ARARs also is performed at
this stage.
Proposed rule: As proposed, the purpose of scoping is to define more
specifically the type and extent of investigative and analytical studies that
are appropriate for a given site. Scoping entails formal planning for both
the RI and FS. The proposal separated the scoping section from the RI section
to which it was attached under the 1985 NCP. EPA separated these sections in
the proposal to highlight the workplan development process and the development
of other project plans (such as the sampling and analysis plan, the health and
safety plan, and the community relations plan) that occurs in the scoping
stage.
During scoping, a conceptual understanding of the site is established by
considering in a qualitative manner, the sources of contamination, potential
pathways of exposure and potential receptors. The identification of potential
ARARs and other criteria, advisories and guidance to be considered will begin
during scoping as lead and support agencies initiate a dialogue on potential
requirements. The main objectives of scoping are to identify the types of
decisions that need to be made, to determine the types (including quantity and
quality) of data needed, and to design efficient studies to collect these
data. The scope and detail of the investigative studies and alternative
development and analysis should be tailored to the complexity of site
problems.
Response to comments: One commenter emphasized that aggressive scoping should
be encouraged to ensure appropriate streamlining of the RI/FS. Another urged
EPA to highlight the scoping process in the preamble or in the rule itself.
Another commenter agreed with EPA's view of scoping as an important first step
in the RI/FS process, but recommended development of project plans less formal
and lengthy than those currently used in the Superfund program.
In response, EPA has incorporated into today's rule the principles of
streamlining and a bias for action. These general principles are to be
considered in scoping to assist in defining the principal threats posed by the
site and to identify likely response scenarios and potentially applicable
technologies and operable units. EPA has highlighted scoping by separating it
from the text describing the RI and by specifically referencing scoping in the
new goal and expectations section of today's rule. EPA believes the
principles and expectations promote the development of documents, including
project plans, commensurate with the scope and complexity of the site problems
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being addressed.
One commenter argued that the lead agency or contractors scoping a
project should be directed to consult with PRPs or other informed private
sector sources about potentially applicable technologies, and give this
information serious consideration. This commenter suggested the following
language be added to the rule: "In scoping the project, the lead agency shall
solicit relevant information from PRPs or other private interests that may be
in a position to provide substantive assistance." This commenter would then
add a statement requiring the lead agency to consider such information.
Although the suggested language has not been incorporated into today's
rule, EPA encourages the early participation of PRPs and the public during
scoping and throughout the RI/FS process. To the extent PRPs are known to the
lead agency during scoping and a dialogue is occurring among the parties, the
PRPs have the opportunity to participate in the planning activities and
suggest and evaluate for themselves technologies worthy of consideration for
site implementation. For example, during scoping, PRPs can participate in a
"technical advisory committee," which gathers expertise on the site conditions
and provides substantive assistance to the lead agency. In addition, the
workplan for a site begins the administrative record, which is available for
review by the public, including PRPs. PRPs and the public can also present
information and issues at public meetings. EPA believes it would be
inappropriate to establish in the NCP an absolute requirement that the lead
agency solicit and consider information provided by PRPs. The lead agency
must retain the discretion to determine the scope and quality of information
to be collected and evaluated.
Several commenters stressed the importance of early coordination with
natural resource trustees, noting that valuable technical assistance can be
obtained through such communication. One commenter offered the opinion that
it would be beneficial and cost-effective if EPA and the natural resource
trustees worked together on the design of the RI/FS sampling and analysis
plan. To this end, the commenter suggested that ' 300.430(b)(5) and (b)(6) of
the proposed rule be reversed, so that notification comes before the
development of the plans. Some commenters urged coordination of natural
resource damage assessments and response actions, arguing that significant
funds may be saved if opportunities to analyze and assess natural resources
are not lost during early study and cleanup activities.
In response, EPA agrees that close communication and coordination with
trustees for natural resources affected or potentially affected by the release
of hazardous substances from the site is essential. (See Subpart G for
details on the designation and role of natural resource trustees.) EPA agrees
with the commenter's suggestion to reverse the order of the sections numbered
300.430(b)(5) and (b)(6) in the proposal. Today's rule places the
notification section (now
300.430(b) (7)) before the section providing for the development of certain
plans (now ' 300.430(b)(8)). EPA agrees that coordination with the trustees
during the conduct of the natural resource damage assessments and response
actions is productive. However, although a trustee may be responsible for
certain natural resources affected or potentially affected by a release, the
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lead agency retains the responsibility for managing activities at the site.
Final rule: Proposed ' 300.430(b) is revised as follows:
1. EPA is clarifying certain aspects of the scoping phase in the rule to
better reflect the objective of each activity. Section 300.430(b) of the rule
clarifies the development of a conceptual
start 55 FR 8708
understanding of the site, the identification of operable units, the
identification of data quality objectives, and the development of the field
sampling plan and quality assurance project plan. In addition, the elements
of the scoping phase have been reordered to better reflect that the timing of
coordination with natural resource trustees may influence the development of
sampling plans. This clarification does not reflect a change in the scope or
function of the scoping process.
2. Proposed ' 300.430(b) (6) is renumbered as ' 300.430(b) (7) and is
revised as follows (see preamble discussion on ' 300.615 for explanation):
If natural resources are or may be injured by the release, ensure that
state and federal trustees of the affected natural resources have been
notified in order that the trustees may initiate appropriate actions,
including those identified in Subpart G of this Part. The lead agency
shall seek to coordinate necessary assessments, evaluations,
investigations, and planning with such state and federal trustees.
Name: Section 300.430(d). Remedial investigation.
Existing rule: The 1985 NCP states in ' 300.68(d) that an RI/FS shall be
undertaken, as appropriate, to determine the nature and extent of the threat
presented by the release and to evaluate proposed remedies. This includes
sampling, monitoring, exposure assessment, and gathering data sufficient to
determine the necessity for and proposed extent of the remedial action.
Section 300.68(e) of the 1985 NCP specifically discusses
characterization of response actions during the RI. This process consists of
examining available information to determine the type of response that may be
needed to remedy the release. Initial analysis shall indicate the extent to
which the release or threat of release may pose a threat to human health or
the environment, indicate the types of removal measures and/or remedial
measures suitable to abate the threat, and set priorities for implementation
of the measures. The 1985 NCP also includes an extensive list of factors that
should be considered in characterizing and assessing the extent to which the
release poses a threat. These factors are also used to support the analysis
and design of potential response actions.
Proposed rule: The proposed rule separates the discussions, although not the
implementation, of the RI and FS, and further separates project scoping from
the RI discussion to highlight the workplan development process, which
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addresses both the RI and FS. The purpose of the RI, as stated in the
proposed NCP, is to collect data necessary to adequately characterize the site
for the purpose of remedy selection. Site characterization may be conducted
in one or more phases to focus sampling efforts and increase the efficiency of
the investigation. Site characterization activities are to be fully
integrated with the development and evaluation of alternatives in the FS. To
characterize the site, the lead agency conducts field investigations and a
baseline risk assessment, and initiates treatability studies, as appropriate.
The proposed NCP included a list of factors that are to be considered to
characterize and assess the extent to which the release poses a threat to
human health or the environment or to support the analysis and design of
potential response actions (53 FR 51504). This list of factors, while less
detailed than the 1985 NCP, is intended to be more inclusive, depending on the
site-specific needs. The results of the baseline risk assessment conducted as
part of the RI (which includes exposure assessment, toxicity assessment, and
risk characterization components) help establish acceptable exposure levels
for use in developing remedial alternatives in the FS. Treatability studies
are initiated to assess the effectiveness of treatment technologies that may
be used as remedial alternatives on site waste. ARARs and, as appropriate,
other pertinent advisories, criteria, or guidance related to the location of
the site or contaminants present are also to be identified during the RI.
Response to comments: Several commenters addressed RI site characterization
issues. One commenter suggested adding the review of state files and the
subpoena of company files during the RI to enhance site characterization. In
response, EPA notes its commitment to the consideration of the best and most
appropriate information available for site characterization and will review
state files and require the production of company files as necessary for a
site.
Another commenter recommended an alternative approach to RIs for sites
with ground-water contamination (the "transport quantification" approach).
Under the transport quantification approach, environmental sampling would be
phased after the contaminant transport flow paths and mechanisms are
evaluated. Transport quantification analysis requires a thorough evaluation
of all data available at that time. According to the commenter, the prior
quantification and predictive analysis of transport mechanisms may allow more
realistic and accurate estimates of actual and potential exposure
concentrations. Additionally, the commenter voiced concern over inappropriate
investigative methods used in drilling of ground-water monitoring wells and
soil gas monitoring.
In response, EPA recognizes the merits of the suggestions and
observations made by the commenter. However, EPA believes that technical
decisions on which model or investigation technique is best suited to a site
is better left to guidance rather than a rule. Of course, EPA may decide to
use a transport quantification approach, even if it is not formally included
in the NCP. EPA will consider the merits of the approach recommended by the
commenter with respect to the goals and limitations of the program. EPA is
considering methods to modify investigation of ground-water aquifers to allow
more efficient remediation of ground water. EPA is investigating vertical
variations in hydraulic conductivity, methods to account for contaminant
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adsorption, and methods to utilize geophysical techniques, in addition to
specific investigation of parameters that may affect monitoring and
pump/treatment of ground water, such as screen length. As new information
becomes available, it will be incorporated into the implementation of the RI.
In response to comments raised about drilling of ground-water wells
through disposal areas, EPA acknowledges that drilling through waste may not
be appropriate in some situations. However, at certain sites, it may be
necessary to drill through disposal areas. In these cases, EPA is aware of
the potential hazards associated with drilling through wastes and takes
precautions, such as casing the wells and monitoring the well depths, to
ensure that the wells do not become a conduit for the spread of contamination
to other aquifers. As to the comment that soil gas monitoring is an
inappropriate investigative technique, EPA states that EPA research
laboratories are currently studying soil gases and their relation to ground-
water contamination. EPA will use the results of these investigations to
modify existing practices in ground-water investigations, if appropriate.
Interested members of the public may comment on the use of such methods on a
site-specific basis during the public comment period on the proposed plan, or
they may raise such issues at appropriate times after the initiation of the
administrative record.
Final rule: In order to clarify some ambiguities in the proposed rule and to
start 55 FR 8709
respond to the above-described and other comments, EPA is making certain minor
changes to the wording in ' 300.430(d) of the rule. Field investigations to
assess the nature and extent to which these releases pose a threat are
emphasized in the clarifications to the rule.
Name: Section 300.430(d). Remedial investigation -- baseline risk
assessment.
Proposed rule: As part of the remedial investigation, the baseline risk
assessment is initiated to determine whether the contaminants of concern
identified at the site pose a current or potential risk to human health and
the environment in the absence of any remedial action. It provides a basis
for determining whether remedial action is necessary and the justification for
performing remedial actions. The Superfund baseline risk assessment process
may be viewed as consisting of an exposure assessment component and a toxicity
assessment component, the results of which are combined to develop an overall
characterization of risk. As indicated above, these assessments are site-
specific and therefore may vary in the extent to which qualitative and
quantitative analyses are utilized, depending on the complexity and particular
circumstances of the site, as well as the availability of pertinent ARARs and
other criteria, advisories or guidance.
During risk characterization, chemical-specific toxicity information,
combined with quantitative and qualitative information from the exposure
assessment, is compared to measured levels of contaminant exposure levels and
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to levels predicted through environmental fate and transport modeling. These
comparisons determine whether concentrations of contaminants at or near the
site are affecting or could potentially affect human health or the
environment. Results of this analysis are presented with all critical
assumptions and uncertainties so that significant risks can be identified.
Response to comments: One commenter requested clarification on the purpose of
risk assessment in the Superfund program, especially the baseline risk
assessment. EPA responds that the purpose of risk assessment in the Superfund
program is to provide a framework for developing risk information necessary to
assist decision-making at remedial sites. Risk assessment provides a
consistent process for evaluating and documenting threats to human health and
the environment posed by hazardous material at sites. One specific objective
of the risk assessment is to provide an analysis of baseline risk (i.e., the
risks that exist if no remediation or institutional controls are applied to a
site). The results of the baseline risk assessment are used to determine
whether remediation is necessary, to help provide justification for performing
remedial action, and to assist in determining what exposure pathways need to
be remediated. The baseline risk assessment has also superseded the
endangerment assessment, because the two have the same goal, function, and
methodology.
A second major objective of risk assessment in Superfund is to use the
risks and exposure pathways developed in the baseline risk assessment to
target chemical concentrations associated with levels of risk that will be
adequately protective of human health for a particular site (i.e., remediation
goals). A similar process is used to assess threats to ecosystems and the
environment and to develop remediation goals based on risk to the environment.
The identification of ARARs is not the purpose of the baseline risk
assessment, as recommended by one commenter. The identification of ARARs is a
separate part of the RI, because many ARARs are not directly risk related.
Nevertheless, ARARs should be addressed consistently in the baseline risk
assessment, the RI/FS, and remedy selection.
Some commenters supported EPA's use of site-specific risk assessments
because, in their view, such assessments more accurately reflect the variety
of site conditions. Several comments, however, argued against use of a site-
specific risk assessment to evaluate baseline risks and to establish
remediation goals. One commenter stated that EPA should be applying either
ARARs or a generic set of nationally applicable contaminant concentration
standards at all sites to ensure consistent and uniform cleanup decisions.
This commenter also felt that the use of site-specific risk assessments was
illegal and served only to confuse the public about the basis for decisions to
protect human health and the environment.
EPA agrees with the commenter and applies ARARs consistently at sites
nationwide, as appropriate to develop remediation goals. However, ARARs
generally do not provide an adequate basis on which to determine site risks,
which are complex and often cannot be reduced to a single number. Further,
EPA notes that CERCLA requires that all Superfund remedies be protective of
human health and the environment but provides no guidance on how this
determination is to be made other than to require the use of ARARs as
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remediation goals, where these ARARs are related to protectiveness. Under
CERCLA (as under other environmental statutes), EPA relies heavily on
information concerning contaminant toxicity and the potential for human
exposure to support its decisions concerning "protectiveness." EPA's risk
assessment methods provide a framework for considering site-specific
information in these areas in a logical and organized way. EPA agrees that a
uniform process should be used to develop risk assessments and cleanup levels.
EPA disagrees with the commenter who advocates national cleanup standards,
however, because the specific concentrations developed for one site may not be
appropriate for another site because of the nature the site, the waste, and
the potential exposures as noted above. If EPA does identify situations in
which uniform national standards under CERCLA appear to be feasible and
appropriate, it may decide to develop such standards.
The decision to perform site-specific risk assessments is consistent
with CERCLA section 104(i)(6), which requires the ATSDR to perform health
assessments for facilities on the proposed and final NPL. As explained in
section 104(i)(6)(F), these health assessments shall include assessments of
the "potential risk" to human health posed by "individual sites", based on
such site-specific factors as the "nature and extent of contamination" and the
"existence of potential pathways of human exposure."
EPA recognizes the logical advantages of establishing consistent
preliminary remediation goals at sites where contamination and exposure
considerations are similar. To the degree possible, EPA makes use of
chemical-specific ARARs in determining remediation goals for Superfund sites.
However, because these standards are established on a national or state-wide
basis, they may not adequately consider the site-specific contamination or the
cumulative effect of the presence of multiple chemicals or multiple exposure
pathways and, therefore, are not the sole determinant of protectiveness.
EPA does agree that a uniform process should be used to develop risk
assessments and cleanup levels. To improve program efficiency and
consistency, EPA is providing extensive guidance for characterizing site-
specific risks and identifying preliminary remediation goals to protect human
health and the environment in two
start 55 FR 8710
guidance documents: "Risk Assessment Guidance for Superfund: Human Health
Evaluation Manual, Part A" No. 9285.701A, July 1989 (Interim Final) and the
"Risk Assessment Guidance for Superfund Volume II: Environmental Evaluation
Manual," EPA/540/1-89/001, March 1989 (Interim Final) hereafter referred to as
risk assessment guidance. The "Human Health Evaluation Manual" is a revision
of the "Superfund Public Health Evaluation Manual" (October 1986) and also
replaces the "Endangerment Assessment Handbook."
EPA received many comments on the methodology EPA uses to conduct site-
specific risk assessments. EPA conducts an exposure assessment to identify
the magnitude of actual or potential human or environmental exposures, the
frequency and duration of these exposures, and the routes by which receptors
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are exposed. This exposure assessment includes an evaluation of the
likelihood of such exposures occurring and provides the basis for the
development of acceptable exposure levels.
Some commenters wanted specific clarification of the meaning of the
"reasonable maximum exposure scenario" and how it is to be used. Some said
that the methodology results in overstated and unrealistic risks and that the
procedures provide significantly biased estimates of risks that are several
orders of magnitude greater than actual risks. Several commenters argued that
not only did the risk assessment methodology that Superfund has used in the
past overestimate risk, but that the proposal's use of a "reasonable maximum
exposure scenario" would institutionalize this overestimation of risk. Some
stated that this overestimation of risk was especially a problem because both
exposures and the toxicity of chemicals are overestimated. The combination of
the two in risk characterization leads to the overstatement of risk. Other
commenters favored the use of the reasonable maximum exposure scenario and
recommended its inclusion in the rule. EPA will continue to use the
reasonable maximum exposure scenario in risk assessment, although EPA does not
believe it necessary to include it as a requirement in the rule.
EPA responds to the requests for clarification of the reasonable maximum
exposure scenario and the baseline risk assessment in the remainder of this
section. In the Superfund program, the exposure assessment involves
developing reasonable maximum estimates of exposure for both current land use
conditions and potential future land use conditions at each site. The
exposure analysis for current land use conditions is used to determine whether
a human health or environmental threat may be posed by existing site
conditions. The analysis for potential exposures under future land use
conditions is used to provide decision-makers with an understanding of
exposures that may potentially occur in the future. This analysis should
include a qualitative assessment of the likelihood that the assumed future
land use will occur. The reasonable maximum exposure estimates for future
uses of the site will provide the basis for the development of protective
exposure levels.
Several commenters stated that EPA's exposure assessment methodology
overestimates risk, especially if worst-case assumptions are used. EPA is
clarifying its policy of making exposure assumptions that result in an overall
exposure estimate that is conservative but within a realistic range of
exposure. Under this policy, EPA defines "reasonable maximum" such that only
potential exposures that are likely to occur will be included in the
assessment of exposures. The Superfund program has always designed its
remedies to be protective of all individuals and environmental receptors that
may be exposed at a site; consequently, EPA believes it is important to
include all reasonably expected exposures in its risk assessments. However,
EPA does agree with a commenter that recommended against the use of
unrealistic exposure scenarios and assumptions. The reasonable maximum
exposure scenario is "reasonable" because it is a product of factors, such as
concentration and exposure frequency and duration, that are an appropriate mix
of values that reflect averages and 95th percentile distributions (see the
"Risk Assessment Guidance for Superfund: Human Health Evaluation Manual").
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EPA does agree with one commenter that the likelihood of the exposure
actually occurring should be considered when deciding the appropriate level of
remediation, to the degree that this likelihood can be determined. The risk
assessment guidance referenced above is designed to focus the assessment on
more realistic exposures. EPA has adopted these positions as policy and has
not revised the regulation. In addition, EPA agrees that risk assessments
conducted for the Superfund should take into consideration background
concentrations and conditions and should identify these critical assumptions
and uncertainties in its risk assessments.
One commenter asked EPA to clarify that both actual and potential risks
will be investigated in the baseline risk assessment. When considering
current land use, the baseline risk assessment should consider both actual
risks due to current conditions and potential risks assuming no remedial
action. For example, these potential risks could arise by the migration of
contaminants through ground water to wells that are currently uncontaminated.
Future land use, where it is different from current use, is an evaluation of
only potential exposures since the future land use addresses a potential
situation. EPA is clarifying the language in the rule to indicate that both
actual and potential exposure routes and pathways should be considered.
In considering land use, Superfund exposure assessments most often
classify land into one of three categories: (1) residential, (2)
commercial/industrial, and (3) recreational. EPA also considers the
ecological use of the property and, as appropriate, agricultural use. In
general, the baseline risk assessment will look at a future land use that is
both reasonable, from land use development patterns, and may be associated
with the highest (most significant) risk, in order to be protective. These
considerations will lead to the assumption of residential use as the future
land use in many cases. Residential land use assumptions generally result in
the most conservative exposure estimates. The assumption of residential land
use is not a requirement of the program but rather is an assumption that may
be made, based on conservative but realistic exposures, to ensure that
remedies that are ultimately selected for the site will be protective. An
assumption of future residential land use may not be justifiable if the
probability that the site will support residential use in the future is small.
Where the likely future land use is unclear, risks assuming residential land
use can be compared to risks associated with other land uses, such as
industrial, to estimate the risk consequences if the land is used for
something other than the expected future use.
Some commenters recommended performing the baseline risk assessment
assuming that institutional controls were in place and effective at preventing
exposure. EPA disagrees that the baseline risk assessment is the proper place
to take institutional controls into account. The role of the
start 55 FR 8711
baseline risk assessment is to address the risk associated with a site in the
absence of any remedial action or control, including institutional controls.
The baseline assessment is essentially an evaluation of the no-action
alternative. Institutional controls, while not actively cleaning up the
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contamination at the site can control exposure and, therefore, are considered
to be limited action alternatives. The effectiveness of the institutional
controls in controlling risk may appropriately be considered in evaluating the
effectiveness of a particular remedial alternative, but not as part of the
baseline risk assessment.
Some commenters stated that use of EPA's toxicity values will lead to
overestimation of risk because they incorporate uncertainty factors or
"margins of safety" that will bias the estimate of risk. EPA responds that
the toxicity assessment component of Superfund risk assessment considers the
following: (1) the types of adverse health or environmental effects associated
with chemical exposures; (2) the relationship between magnitude of exposures
and adverse effects; and (3) related uncertainties such as the weight-of-
evidence for a particular chemical's carcinogenicity in humans. EPA
recognizes that toxicity values do incorporate "uncertainty factors." Because
the toxicity information is usually derived from studies of industrial workers
or test animals, the size of these uncertainty factors is generally determined
by the confidence that effects seen in these studies will manifest themselves
in humans exposed at Superfund sites. Larger uncertainty factors are
generally used to ensure that protective levels are identified when
considering data with greater uncertainty. It should be noted that weights-
of-evidence (and uncertainty factors) are not directly related to toxicity.
For example, a high weight-of-evidence indicates only a high confidence that a
chemical will cause cancer in humans. A high confidence in a toxicity value
reflects a consensus that the value is not likely to change.
One commenter argued that EPA, or other lead agency, must consider
information on toxicity that PRPs or interested parties bring to their
attention during the public comment period. In response, EPA will, of course,
consider such public comments submitted on toxicity. However, it is important
to note that the Superfund risk assessment process typically relies heavily on
existing toxicity information or profiles that EPA has developed on specific
chemicals. EPA believes that the use of a consistent data base of
toxicological information is important in achieving comparability among its
risk assessments. This information generally includes estimated carcinogen
exposures that may be associated with specific lifetime cancer risk
probabilities (risk-specific doses or RSDs), and exposures to noncarcinogens
that are not likely to present appreciable risk of significant adverse effects
to humans (including sensitive subgroups) over lifetime exposures (reference
doses or RfDs). EPA has also developed toxicity information for some
ecosystem receptors. Where no toxicological information is available in EPA's
data base, then EPA routinely considers other available information, including
information provided by PRPs or other interested parties. Depending on the
evidence, however, EPA may feel it is not appropriate to assess the toxicity
of specific chemicals quantitatively because of the questions of reliability
and consistency in data development. EPA may decide to address these
chemicals qualitatively.
The results of the baseline risk assessment are used to understand the
types of exposures and risks that may result from Superfund sites. Key
assumptions and uncertainties in both contaminant toxicity and human and
environmental exposure estimates must be documented in the baseline risk
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assessment, as well as the sources and effects of uncertainties and
assumptions on the risk assessment results. Exposure assumptions or other
information, such as additional toxicity information, may be evaluated to
determine whether the risks are likely to have been under- or overestimated.
These key assumptions and uncertainties must also be considered in developing
remediation goals.
Several commenters suggested that the baseline risk assessment should be
used to determine whether particular requirements were applicable or relevant
and appropriate for a site. EPA believes that this determination must be made
independently from the risk assessment, although EPA agrees that the
assumptions used in the risk assessment should be consistent with those used
to determine what requirements will be ARAR for a site. Risk assessment and
ARARs serve different functions. The identification of ARARs is used to
identify remediation goals and to indicate how remedial alternatives are to be
implemented. In contrast, the risk assessment is a technical analysis of the
risks posed by hazardous materials at a site. Consequently, it would be
inappropriate for these two elements of the RI/FS to be done together.
Final rule: Proposed ' 300.430(d)(4) of the rule has been clarified to
indicate that both current and potential exposures and risks are to be
considered in the baseline risk assessment. No other changes have been made
to the rule on risk assessment. The reference to advisories, criteria or
guidance in ' 300.430(d)(3) has been modified (see preamble
section below on TBCs).
Name: Section 300.430(e). Feasibility study.
Existing rule: The 1985 NCP states in ' 300.68(d) that a remedial
investigation/feasibility study (RI/FS) shall, as appropriate, be undertaken
to determine the nature and extent of the threat presented by the release and
to evaluate proposed remedies. Part of the RI/FS may also involve assessing
whether the threat can be prevented or minimized using source control measures
or whether additional actions will be necessary because the hazardous
substances have migrated from the area of their original location.
The 1985 NCP discusses FS development of alternatives in
300.68(f), stating that to the extent it is possible and appropriate, at
least one alternative should be developed in each of the following categories:
(1) Treatment alternatives; (2) alternatives that attain ARARs; (3)
alternatives that exceed ARARs; (4) alternatives that do not attain ARARs; and
(5) a no-action alternative. The alternatives should, as appropriate,
consider and integrate waste minimization, destruction, and recycling.
The alternatives developed under ' 300.68(f) are subject to an initial
screening to narrow the list of potential remedial actions for further
detailed analysis. The alternatives that remain after the initial screening
must undergo a detailed analysis to evaluate and analyze each alternative
against a set of specific criteria. The results of this analysis provide the
basis for identifying the preferred alternative.
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As specified in ' 300.68 (i), the appropriate extent of remedy will be
determined by the lead agency's selection of a cost-effective remedial
alternative that effectively mitigates and minimizes threats to, and provides
adequate protection of, public health and welfare and the environment. This
determination will require that a remedy, except in certain specified
situations, attain or exceed federal public health and environmental ARARs.
In selecting the appropriate
start 55 FR 8712
remedy, the lead agency will consider cost, technology, reliability,
administrative and other concerns, and their relevant effects on public health
and welfare and the environment. If there are no ARARs, the lead agency will
select the cost-effective alternative that effectively mitigates and minimizes
threats, and provides adequate protection to public health and welfare and the
environment.
Proposed rule: The requirements of SARA led to significant changes in the
feasibility study section of the 1985 NCP, primarily in the range of
alternatives that are developed for consideration in the FS and in the
development of the nine criteria, based on mandates and factors to consider
specified by the statute, for analysis of the alternatives. The proposed rule
separates the discussion of the FS from the RI. In 300.430(e), the proposed
NCP states that the primary objective of the FS is to ensure that appropriate
remedial alternatives are developed and evaluated such that relevant
information concerning the waste management options can be presented to a
decision-maker and an appropriate remedy selected. The regulation requires
the development and evaluation of alternatives to reflect the scope and
complexity of the remedial action under consideration and the site problems
being addressed. During the FS, alternatives are developed to protect human
health and the environment by eliminating, reducing, and/or controlling risks
posed through each pathway by a site. The number and type of alternatives
that are analyzed is determined according to site-specific circumstances.
The first step in the FS process involves developing remedial action
objectives for protecting human health and the environment which should
specify contaminants and media of concern, potential exposure pathways, and
preliminary remediation goals. The preliminary remediation goals are
concentrations of contaminants for each exposure route that are believed to
provide adequate protection of human health and the environment based on
preliminary site information. These goals are also used to assist in setting
parameters for the purpose of evaluating technologies and developing remedial
alternatives. Because these preliminary remediation goals typically are
formulated during project scoping or concurrent with initial RI activities
(i.e., prior to completion of the baseline risk assessment), they are
initially based on readily available environmental or health-based ARARs
(e.g., maximum contaminant levels (MCLs)), ambient water quality criteria
(WQC)) and other criteria, advisories, or guidance (e.g., reference doses
(RfDs)). As new information and data are collected during the RI, including
the baseline risk assessment, and as additional ARARs are identified during
the RI, these preliminary remediation goals may be modified as appropriate to
ensure that remedies comply with CERCLA's mandate to be protective of human
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health and the environment and comply with ARARs.
During the development and analysis of alternatives, the risks
associated with potential alternatives, both during implementation and
following completion of remedial action, are assessed, based on the reasonable
maximum exposure assumptions and any other controls necessary to ensure that
exposure levels are protective and can be attained. These are generally
assessed for each exposure route unless there are multiple exposure routes
where combined effects may have to be considered. For all classes of
chemicals, EPA uses health-based ARARs to set remediation goals, when they are
available. When health-based ARARs are not available or are not sufficiently
protective due to multiple exposures or multiple contaminants, EPA sets
remediation goals for noncarcinogenic chemicals such that exposures present no
appreciable risk of significant adverse effects to individuals, based on
comparison of exposures to the concentration associated with reliable toxicity
information such as EPA's reference doses. Similarly, when an ARAR does not
exist for carcinogens, EPA selects remedies resulting in cumulative risks that
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fall within a proposed range of 10 to 10 incremental individual lifetime
cancer risk (revised in final rule to 10 4 to 10 6), based on the use of
reliable cancer potency information such as EPA's cancer potency factors. In
addition, EPA will set remediation goals for ecological and environmental
effects based on environmental ARARs, where they exist, and levels based on
site-specific determination to be protective of the environment.
Once the remediation goals have been established, potentially suitable
technologies, including innovative technologies are also identified,
evaluated, and assembled into alternative remedial actions that are designed
to meet the remediation goals established according to the principles stated
in the previous paragraph. The proposed NCP directs that certain types of
alternatives must be developed, as appropriate, for source control and ground-
water response actions, and describes the requirements for developing
innovative treatment alternatives and no-action alternatives. The short- and
long-term aspects of three criteria (i.e., effectiveness, implementability,
cost), will, as appropriate, guide the development and screening of
alternatives.
Alternatives that remain after the initial screening must undergo a
detailed analysis that consists of an assessment of individual alternatives
against each of the nine evaluation criteria. These criteria are:
(6)
(9)
(7)
(5)
(4)
(1)
(3)
(2)
8
Overall protection of human health and the environment;
Compliance with ARARs;
Long-term effectiveness and permanence;
Reduction of toxicity, mobility, or volume;
Short-term effectiveness;
Implementability;
Cost;
State acceptance; and
Community acceptance.
Response to comments: 1. Remedial action objectives and remediation goals.
One commenter recommended that remedial action objectives be established in
-------
the RI rather than the FS because the commenter feels they are needed early in
the process so that they may be used as part of the baseline risk assessment.
EPA agrees that remedial action objectives are needed early in the process.
However, EPA believes that putting the remediation goals as the first step of
the FS accomplishes this objective and does not delay the development of
remediation goals because the RI and FS are not sequential but rather
concurrent processes. In fact, remediation objectives and goals are initially
developed at the workplan stage, prior to the commencement of RI/FS
activities. In addition, the remediation goals are not necessary for the
baseline risk assessment. Rather, the results of the baseline risk assessment
are used to either confirm that the preliminary remediation goals are indeed
protective or to lead to the revision of the remediation goals in the proposed
plan.
Another commenter suggested that preliminary remediation goals be
reviewed when developing the remedial action objectives. This comment
reflects widespread confusion about the remedial action objectives and
remediation goals. Several commenters asked for clarification of these two
concepts. The remedial action objectives are the more general description of
what the remedial action will accomplish.
start 55 FR 8713
Remediation goals are a subset of remedial action objectives and consist of
medium-specific or operable unit-specific chemical concentrations that are
protective of human health and the environment and serve as goals for the
remedial action. The remedial action objectives aimed at protecting human
health and the environment should specify: (1) the contaminants of concern,
(2) exposure routes and receptors, and (3) an acceptable contaminant level or
range of levels for each exposure medium (i.e., a preliminary remediation
goal). Remedial action objectives include both a contaminant level and an
exposure route recognizing that protectiveness may be achieved by reducing
exposure as well as reducing contaminant levels.
As noted above, the preliminary remediation goals are the more specific
statements of the desired endpoint concentrations or risk levels. Initially,
they are based on readily available information, such as chemical-specific
ARARs (e.g., MCLs, WQCs) or concentrations associated with the reference doses
or cancer potency factors. As the RI proceeds and information from the
baseline risk assessment becomes available, the preliminary goals may be
modified due, among other things, to consideration of site-related exposure
through multiple exposure pathways or exposure to multiple chemicals, either
of which may raise the cumulative risk from chemicals of concern at the site
out of the risk range. The initial development of preliminary remediation
goals is not intended to be a lengthy undertaking, although remediation goals
are revised throughout the RI/FS process as additional information becomes
available.
The development of preliminary remediation goals serves to focus the
development of alternatives on remedial technologies that can achieve the
remedial goals, thereby limiting the number of alternatives to be considered
in the detailed analysis. This focusing is one means of implementing the
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program's expectation for streamlining the remedial process. Information to
develop final remediation goals is developed as part of the RI/FS process.
Consequently, the use of preliminary remediation goals does not preclude the
development and consideration or selection of alternatives that attain other
risk levels. Final selection of the appropriate level of risk is made based
on the balancing of criteria in the remedy selection step of the process.
Language in the regulation has been revised to clarify the development of
remediation goals.
One commenter felt the remediation goals should be based only on ARARs
and that EPA has no authority to require compliance with anything but ARARs,
although the commenter acknowledges that other information may be necessary
when ARARs are not available. EPA disagrees that it has no authority to
comply with anything but ARARs. ARARs do not exist for all exposure media
(e.g., certain types of contaminated soil) or for all chemicals, and
therefore, EPA must use other information to set remediation goals that will
ensure protection of human health and the environment as required by statute.
EPA intends that this will focus on the EPA-developed toxicity information
(cancer potency factors and the reference doses for noncarcinogenic effects).
If neither ARARs nor EPA-derived toxicology information are available, other
information will be used, as necessary, to determine what levels are necessary
to protect human health and the environment (e.g., state guidelines on what is
protective for a certain chemical).
Where ARARs do not exist or where the baseline risk assessment indicates
that cumulative risks -- due to additive or synergistic effects from multiple
contaminants or multiple exposure pathways -- make ARARs nonprotective, EPA
will modify preliminary remediation goals, as appropriate, to be protective of
human health and the environment. For cumulative risks due to noncarcinogens,
EPA will set the remediation goals at levels for individual chemicals such
that the cumulative effects of exposure to multiple chemicals will not result
in adverse health effects. EPA is clarifying the language in the rule in
response to a commenter to indicate that an acceptable exposure for
noncarcinogens is one to which human populations, including sensitive
subgroups such as pregnant women and children, may be exposed without adverse
effects during a lifetime or a part of a lifetime, incorporating an adequate
margin of safety. The phrase "part of a lifetime" is added to clarify that
protective levels will be set for less than lifetime exposures, as
appropriate. In general, acceptable chemical concentrations are lower for
lifetime exposure than other exposure durations.
EPA will set remediation goals for total risk due to carcinogens that
represent an excess upperbound lifetime cancer risk to an individual to
between 10 4 to 10 6 lifetime excess cancer risk. A cancer risk of 10 6 will
serve as the point of departure for these remediation goals. EPA is
clarifying, based on a recommendation from a commenter, that all preliminary
remediation goals will be set so that they are protective for sensitive
subpopulations, such as pregnant women and children. Comments on the use of a
cancer risk range and a point of departure for the establishment of
remediation goals are addressed in preamble sections below.
Remedial action objectives and remediation goals should be set for
-------
appropriate environmental media, and performance standards established for
selected engineering controls and treatment systems including controls
implemented during the response measure. While points of compliance for
attaining these remediation levels are established on a site-specific basis,
as supported by some commenters, there are general policies for establishing
points of compliance. For ground water, remediation levels should generally
be attained throughout the contaminated plume, or at and beyond the edge of
the waste management area when waste is left in place. For air, the selected
levels should be established for the maximum exposed individual, considering
reasonably expected use of the site and surrounding area. For surface waters,
the selected levels should be attained at the point or points where the
release enters the surface waters. (See preamble section on ARARs for further
information on points of compliance.)
One commenter objected to the use of the "reasonable maximum exposure
scenario" in the development of remediation goals, as described in the
preamble to the proposed rule. In particular, the commenter objected to the
use of the reasonable maximum exposure concept given the lack of definition
and criteria on which to apply it. EPA believes that Superfund remedies need
to be protective of all individuals exposed through likely exposure pathways,
not just large populations, as suggested by another commenter. To that end EPA
developed the concept of reasonable maximum exposure, which is designed to
include all exposures that can be reasonably expected to occur, but does not
focus on worst-case exposure assumptions. EPA has clarified the definitions
and discussion of the reasonable maximum exposure in today's preamble
discussion of the baseline risk assessment.
Another commenter expressed concern that even though a risk assessment
shows a particular remedy is protective, EPA will set remediation goals at
more stringent levels based on policy, criteria, or guidelines (not
start 55 FR 8714
regulations). EPA responds that it is the goal of the Superfund program to
select remedies that protect human health and the environment, maintain that
protection over time, and minimize untreated waste. The risk assessment is
one factor in the determination of what is protective. EPA does not
arbitrarily select remediation goals that exceed levels determined to be
protective.
2. Development and screening of alternatives. Regarding the development
of alternatives, several commenters stated that there is no justification for
requiring an array of alternatives to be developed in every situation.
Commenters were particularly concerned about situations where certain options
were precluded by site conditions (e.g., municipal landfills where treatment
of all site wastes is impracticable). One commenter suggested that
300.430(e)(3)(ii) be deleted, since, in the commenter's opinion, there was no
justification for requiring a containment alternative to be developed for
every Superfund site, even when the scoping phase indicated that a range of
treatment-based remedies is appropriate. Another commenter recommended
specific revisions to ' 300.430(e) to clarify this point.
-------
EPA agrees with the commenter that focusing the development of
alternatives only on those that show promise in achieving the goals of the
Superfund program is a significant means by which the program can streamline
the process and achieve more rapid cleanup. However, EPA feels that this
flexibility is already present in the rule which repeatedly states that
alternatives should be developed, as appropriate, for the particular situation
at the site. This means that if treatment is not practicable for all wastes
at the site, then complete treatment need not be included as an alternative.
Alternatively, if it is clear that treatment will be part of the remedy,
alternatives that rely solely on containment or institutional controls and
that do not include treatment need not be considered. This practice is
consistent with the program expectations discussed above.
Two commenters stated that the proposed approach for development and
screening of alternatives is biased against innovative technologies, since
there appears to be a strong tendency for EPA to select remedies that have
been previously proven to be successful. One commenter asserted that it was
not clear how EPA would evaluate innovative technologies in the screening
analysis. EPA would like to clarify that it does not intend to inhibit the
development of innovative technologies in the development and screening of
alternatives. EPA has deleted the requirement in the final rule that
innovative technologies must offer "better" performance than proven
technologies. Instead, EPA has stated its intent to consider those innovative
technologies that offer the potential for comparable or superior performance
or implementability; fewer or lesser adverse impacts than other available
approaches; or lower costs for similar levels of performance than demonstrated
treatment technologies. By providing for the consideration of innovative
technologies, EPA intends to eliminate from consideration only those
innovative technologies that have little potential for performing well at
specific sites.
As part of the encouragement of innovative technologies that EPA expects
to result from this provision, EPA is emphasizing the need for performing
treatability studies earlier in the remedial process. Because innovative
technologies may not have been as thoroughly demonstrated, treatability
studies during the RI/FS may be necessary to provide information sufficient
for an appropriate evaluation of these technologies. The goal of treatability
studies is to establish through the use of good science and engineering, the
probable effectiveness of innovative technologies. EPA has issued guidance
that further encourages the use of innovative treatment technologies in
"Advancing the Use of Treatment Technologies for Superfund Remedies" (OSWER
Directive 9355.0-26).
One commenter requested that ' 300.430(e) (3) be revised to clarify that
off-site disposal in a secure facility without treatment may be selected as a
partial or complete remedy. The commenter also addressed in detail one
particular alternative that the NCP and guidance should suggest for
consideration and analysis (i.e., use of the site, once remediated, as a solid
waste management unit). EPA agrees with the commenter that off-site disposal
without treatment may be selected as the remedy in appropriate circumstances,
such as where the site has high volumes of low toxicity waste. However, the
statute clearly indicates that this is the least preferred alternative. EPA
-------
believes that this comment most directly addresses the remedy selection, not
the feasibility study, and has modified proposed ' 300.430(f)(3)(iii) ('
300.430(f)(1)(ii)(E) in the final rule) to acknowledge that off-site disposal
without treatment can potentially be an appropriate alternative while
recognizing the statutory bias against it. As to the commenter's second
point, nothing in the NCP prohibits the use of remediated sites as RCRA solid
waste management units, provided all requirements under RCRA and other
applicable laws, including permitting requirements, are met, and any CERCLA
off-site policy/rule requirements are satisfied (OSWER Directive No. 9834.11
(November 13, 1987); 40 CFR 300.440 (proposed)(53 FR 48218, November 29,
1988) ) .
With reference to the screening of alternatives, several commenters
supported EPA's proposal to allow the elimination of alternatives at the
screening stage on the basis of cost. Some of these commenters suggested that
determination of cost-effectiveness be made an explicit screening step, noting
that Congress requires that remedies be cost-effective. They argued that
inadequate consideration of cost will lead to inefficient use of the fund and
may result in some sites not being addressed. One commenter stated that the
inability to eliminate cost-ineffective remedies early in the remedy selection
process results in a misallocation of time, effort, and funds.
Other commenters opposed using cost as a criterion during the
preliminary screening of alternatives. One commenter argued that many
alternatives are rejected based on inadequate cost data. Another commenter
stated that eliminating remedial alternatives based on consideration of cost
before the ultimate health-based standards or levels of control are determined
was inappropriate and illegal.
In response to comments received on the role of cost in the development
and screening of alternatives, EPA has clarified the role of cost in screening
of alternatives. Screening is to be performed to eliminate from further
consideration those alternatives that are not effective, not implementable, or
whose costs are grossly excessive for the effectiveness they provide. This
last category would include those situations where cost is so excessive that a
remedy is virtually unimplementable and is, therefore, impracticable to
consider. Specifically, when alternatives vary significantly in their
effectiveness, cost may be considered in conjunction with other factors to
determine which alternatives are inordinately costly for the effectiveness
they provide. For example, where total treatment of a large municipal
landfill has been considered initially as a remedial
start 55 FR 8715
alternative, this alternative will likely be eliminated from further
consideration due to the large volume of material for which treatment capacity
is not available and for which costs are extremely high.
The other situation where cost may result in the elimination of an
alternative during screening is where two or more alternatives are determined
to provide similar levels of effectiveness and implementability by using a
similar method of treatment or engineering control but their costs vary
-------
significantly. In this case, cost can be used to eliminate from further
consideration the more costly alternatives. For example, if soil washing and
bioremediation are expected to be similarly effective, but bioremediation is
significantly more costly, the bioremediation alternative could be eliminated
from further consideration while the soil washing option would be carried
through to detailed analysis.
One commenter argued against considering cost in screening because the
use of potentially inadequate cost data available in this stage of the
remedial process may result in the elimination of viable alternatives. EPA
responds that while cost data are continuously being developed, at the
screening stage cost data of sufficient quality are usually available to
determine whether the cost of an alternative is "grossly excessive" or
significantly more costly for the results it provides. EPA believes that this
screening should be used to help streamline the detailed analysis.
Finally, one commenter suggested that if there is proper coordination
with natural resource trustees during the development of alternatives, trustee
recommendations concerning, for example, appropriate mitigation for wetlands
impacts and cost-effective restorations, may be incorporated into project
plans. The commenter believed this would facilitate trustee determinations as
required in section 122(j)(2) of CERCLA. EPA agrees that coordination with
natural resource trustees during the development of alternatives is important.
Today's rule indicates in several sections (300.615(c), 300.410(g), and
300.430(b)(7)) that the lead agency should seek to coordinate with the natural
resource trustees. In fact, ' 300.615 of this rule addresses a variety of
natural resource trustee issues, including coordination and cooperation
between multiple trustees and the lead agency.
Final rule: Several changes are being made to proposed
300.430(e), the feasibility study section, primarily to clarify the
feasibility study role and process.
1. The kinds of alternatives that are developed during the feasibility
study have been expanded to indicate that recycling may be used to protect
human health and the environment by eliminating, reducing and/or controlling
risks at a site. Discussion of this change is found in the response to
comments for the detailed analysis of alternatives.
2. Language in the regulation at ' 300.430(e)(2)(i) has been clarified
to indicate that preliminary remediation goals are initially developed based
on easily available information, such as ARARs and other reliable information.
This reliable information will likely be EPA-developed toxicity information
(i.e., reference doses and cancer potency factors) . As further information
becomes available, then other factors listed in paragraphs (e)(2)(i)(A), (B),
and (C) will be considered. In addition, the description of ARARs in
300.430(e)(2)(i)(A) is revised (see preamble section below on definition of
"Applicable"). Further, the language in ' 300.430(e)(2)(i)(A)(^) is revised
for clarity. Sections 300.430(e)(2)(i)(A)(£) and (^) of the proposal are
being combined in the final rule to indicate that exposure to multiple
contaminants and multiple exposure pathways are situations that may result in
ARARs being nonprotective. Language in ' 300.430(e)(2)(i)(G) is being added
to indicate that where environmental ARARs do not exist, environmental
-------
evaluations, especially focusing on sensitive ecosystems and critical habitats
of species protected under the Endangered Species Act, will provide
information for developing remediation goals. These changes are being made to
clarify the proposal and do not represent any change in the remedial process.
3. See ARARs preamble sections below for other additions or revisions to
300.430(e)(2)(i): "Use of maximum contaminant level goals for ground water,"
"Use of federal water quality criteria (FWQC)," and "Use of alternate
concentration limits (ACLs)."
4. Section 300.430(e)(6) has been revised to clarify that a no-action
alternative may be appropriate where a removal or remedial action has already
occurred at a site.
5. The provision on the development of alternatives that use innovative
technologies is being revised to indicate that an innovative technology need
only offer the potential to be comparable in performance or implementability
to demonstrated technologies to warrant further consideration in the detailed
analysis step.
6. Two factors used in the screening of alternatives are being revised.
ARAR compliance and reduction of toxicity, mobility or volume through
treatment are being added as considerations in determining effectiveness.
This revision corrects an inadvertent omission in the proposal. The role of
cost in screening alternatives has been revised to indicate that alternatives
may be screened on costs in two ways. First, an alternative whose cost is
grossly excessive compared to the effectiveness it provides may be eliminated
in screening. Second, if two or more alternatives provide similar levels of
effectiveness and implementability using a similar method of treatment or
engineering control, the more expensive may be eliminated from further
consideration.
7. The references to advisories, criteria or guidance in
300.430(e)(8) and (9) have been modified (see preamble section below on
TBCs) .
Name: Section 300.430(e)(2). Use of risk range.
Proposed rule: Proposed ' 300.430(e)(2)(i)(A)(2) states that for known or
suspected carcinogens, acceptable exposure levels are generally concentration
levels that represent an excess upperbound lifetime cancer risk to an
individual of between 10 4 and 10 7 (53 FR 51426 and 51505).
Response to comments: A few commenters supported the proposed risk range of
10 4 to 10"', though generally with qualifications. One commenter's position
on the point of departure makes clear that they view the risk range only as a
_ £
fallback when 10 cannot be attained. Another commenter supporting the
proposed risk range argued that the risk range should be used only as a
guideline, in order to provide lead agencies with sufficient flexibility.
Another commenter said that they could support the proposed range, but their
-4 -6
comments clearly favor revision to a range of 10 to 10 as the really
-------
operative part. Several commenters (see below) supported a more stringent
risk range or level.
Many commenters favored a less stringent range, i.e., one whose lower
-7 -4
risk bound is higher than 10 and whose upper bound may even exceed 10 ,
while some favored a more stringent range or a single, stringent target
cleanup level. A few commenters recommended dispensing with the use of a risk
range or risk assessment altogether as a basis for cleanup in favor of what
they maintained are more stringent levels (background or statutorily specified
ARARs). Several
start 55 FR 8716
commenters pointed out that risk assessment methodology is as important as the
range chosen.
The majority in favor of a less stringent range generally supported a
-4 -6
risk range of 10 to 10 A number of reasons were given m support of this
alternative. The most commonly repeated reason is that the narrower, higher
risk range is consistent with risk management decisions made in other EPA
regulatory programs and in federal regulatory agencies in general. Commenters
_7
argued that allowing a lower risk on the order of 10 would be
"unprecedented" and "indefensible," far less than many commonly accepted risks
or the accepted de_jniinimi_s level. Some also noted that no Superfund action
has ever cleaned up to this stringent level. Another commenter stated that
recent judicial decisions support the use of a narrower risk range. One
-5 -6
commenter suggested a slightly different range of 10 to 10 m order to
limit the pressure for less protective remedies.
_7
Other reasons for opposing a risk range with a boundary at 10 are that
such a range could lead to fewer cleanups of high-risk sites or less overall
risk reduction, which would misallocate scarce resources (the Superfund) and
be contrary to the statutory mandate for cost-effectiveness; that it is
impossible to detect many chemicals at this low level; that it is not
technologically feasible in many cases to achieve this level; that risk
assessment already incorporates conservative assumptions; and that the
broader, more stringent range complicates analysis of alternatives in the FS.
One commenter pointed out that the more stringent level may be suitable for
highly toxic chemicals such as pesticides, but otherwise it is not worth the
additional cost. Another commenter charged that EPA's choice of the lower
bound was improperly intended to bias selection of remedy toward treatment
technologies, because it is clearly not necessary for protection of health.
Several commenters argued against the proposed risk range in favor of
_ £
setting the overall cleanup level for the remedy at no higher than 10 . They
argued that because risk assessment is fraught with uncertainty, remedies
should always protect to this level at a minimum, regardless of the levels of
individual ARARs. Commenters recognized that it may not be feasible to
_ £
achieve 10 , or there may be "extraordinary circumstances" that
preclude this level; in such cases one commenter proposed an upper bound of
-------
These commenters also had problems with the specific boundaries proposed
-4 -7
by EPA. One commenter said that 10 is too great a risk, and even 10 may be
-4 -6
as well; they found the alternative of 10 to 10 to be unacceptable,
although they did not say what risk level or approach would be preferable.
They disputed the validity of the argument relating risk level and number of
sites cleaned up because of the availability of PRPs. One commenter, while
-5 -4
preferring a risk range to a single level, suggested that 10 rather than 10
might be more protective as the upper bound for one or two chemicals because
the conservative assumptions become additive for more than two chemicals.
— ^
Another commenter argued that an upper bound at 10 is needed because a state
agency would have difficulty supporting or justifying using a higher risk
level. A commenter expressed concern that a risk range might preclude more
protective remedies that can practicably be achieved at little additional
_7
cost. One commenter argued that levels below 10 should be permissible, and
that any limit at the lower end would undermine the state in negotiating with
PRPs. A commenter suggested that risk assessment should be a final check on
the most protective remedy practicable.
Commenters argued that use of a risk range does not adequately protect
health and environment. One proposed that cleanup should always be to
background levels as a first choice, because anything less leaves
contamination whose cumulative and chronic effects are unknown. Another
commenter disagreed with use of a risk range and site-specific risk assessment
as a basis for remedy selection, saying that it violates the statute's mandate
to use such stringent standards as MCLGs and water quality criteria, which
would assure protection of health and environment. A commenter pointed out
that there is no statutory authority for use of a risk range when ARARs exist.
Finally, several commenters suggested that the assumptions and methods
of risk assessment are as important, or even more important, than the risk
range used. They pointed out the need for standardized risk assessment
methods and exposure assumptions, and gave suggestions for improved ways of
handling uncertainties.
EPA recognizes the merits of many of the comments made on the risk range
issue and appreciates the significance of the boundaries of the risk range for
determining the extent of protectiveness and the cost of cleanups. Based on
the comments received, EPA has decided to revise the boundaries of the
-4 -6
acceptable risk range for Superfund cleanups to 10 to 10 but to allow for
_ £
cleanups more stringent than 10 when warranted by exceptional circumstances.
The following discussion explains the basis for using a risk range, the
reasons for revising the range, and how this revised risk range is to be used
when setting remediation goals for a specific medium -- soil, ground water,
surface water, or air -- and responds to other comments summarized above on
this risk range issue.
The primary goals of Superfund cleanups are to protect human health and
Cleanup levels at a site are determined for a particular medium. Such
cleanup levels encompass the acceptable risk levels for contaminants in that
medium.
-------
the environment and to comply with ARARs. When ARARs are not available,
Superfund develops a reasonable maximum exposure scenario that describes the
current and potential risk posed by the site in order to determine what is
necessary to achieve protection against such risks to human health (see
preamble section above on baseline risk assessment for more discussion of
reasonable maximum exposure scenario). Based on this scenario, Superfund
selects remedies that reduce the threat from carcinogenic contaminants at a
site such that the excess risk from any medium to an individual exposed over a
-4 -6
lifetime generally falls within a range from 10 to 10 . EPA's preference,
all things being equal, is to select remedies that are at the more protective
end of the risk range. Therefore, when developing its preliminary remediation
_ £
goals, EPA uses 10 as a point of departure (see next preamble section on
point of departure).
EPA believes that use of a risk range is consistent with the mandates in
CERCLA and disagrees with comments that Superfund should not use a risk range.
CERCLA does not require the complete elimination of risk or of all known or
anticipated adverse effects, i.e., remedies under CERCLA are not required to
entirely eliminate potential exposure to carcinogens. CERCLA section 121 does
direct, among other requirements, that remedies protect human health and the
environment, be permanent to the maximum extent practicable and be cost-
effective. Remedies at Superfund sites comply with these statutory mandates
when the amount of exposure is reduced so that the risk posed by contaminants
-4 -6
is very small, i.e., at an acceptable level. EPA's risk range of 10 to 10
represents EPA's opinion on what are generally acceptable levels.
start 55 FR 8717
In response to comments received, and to be consistent with the accepted
de minimis level used by other EPA programs, e.g., the drinking water program,
-7 -6
the lower boundary of the risk range has been changed from 10 to 10 . This
change also reflects the fact, noted by commenters, that current available
analytical and detection techniques cannot effectively verify for many
_ £
contaminants that concentration levels corresponding to risk levels below 10
have actually been attained after remediation.
In the Superfund program, remediation decisions must be made at hundreds
of diverse sites across the country. Therefore, as a practical matter, the
remediation goal for a medium typically will be established by means of a two-
step approach. First, EPA will use an individual lifetime excess cancer risk
_ 0
of 10 as a point of departure for establishing remediation goals for the
_ 0
risks from contaminants at specific sites. While the 10 starting point
expresses EPA's preference for setting cleanup levels at the more protective
end of the risk range, it is not a presumption that the final Superfund
cleanup will attain that risk level.
Office of Drinking Water, National Primary and Secondary Drinking Water
Regulations; Proposed Rule, 54 FR 22064 (May 22, 1989). In general, other
_ 0
federal agencies do not reduce individual lifetime risk levels below 10
"Cancer risk management," Environmental Science and Technology, Vol. 21, No. 5
(1987) .
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The second step involves consideration of a variety of site-specific or
remedy-specific factors. Such factors will enter into the determination of
-4 -6
where within the risk range of 10 to 10 the cleanup standard for a given
contaminant will be established.
-6
Preliminary remediation goals for carcinogens are set at a 10 excess
cancer risk as a point of departure, but may be revised to a different risk
level within the acceptable risk range based on the consideration of
appropriate factors including, but not limited to: exposure factors,
uncertainty factors, and technical factors. Included under exposure factors
are: the cumulative effect of multiple contaminants, the potential for human
exposure from other pathways at the site, population sensitivities, potential
impacts on environmental receptors, and cross-media impacts of alternatives.
Factors related to uncertainty may include: the reliability of alternatives,
the weight of scientific evidence concerning exposures and individual and
cumulative health effects, and the reliability of exposure data. Technical
factors may include: detection/quantification limits for contaminants,
technical limitations to remediation, the ability to monitor and control
movement of contaminants, and background levels of contaminants. The final
selection of the appropriate risk level is made when the remedy is selected
based on the balancing of criteria (see preamble discussion below on remedy
selection) .
-6
Some commenters recommended establishing a single point, e.g., 10 , as
the basis for cleanup at all sites. EPA does not agree with this
recommendation because EPA believes that other risk levels may be protective
_ £
when the 10 risk level will not be attained at a site due to the factors
_ £
described above. Moreover, establishing 10 as the single cleanup level,
i.e., the only level considered protective, would be incongruous with CERCLA's
requirement to comply with ARARs. Many ARARs, which Congress specifically
intended be used as cleanup standards at Superfund sites, are set at risk
levels less stringent than 10 6.
Ground water that is not currently a drinking water source but is
potentially a drinking water source in the future would be protected to levels
appropriate to its use as a drinking water source. Ground water that is not
an actual or potential source of drinking water may not require remediation to
-4 -6
a 10 to 10 level (except when necessary to address environmental concerns
or allow for other beneficial uses; see preamble discussions below on EPA's
ground-water policy and on use of MCLGs for ground-water cleanups).
EPA's approach on setting remediation goals for soils is based on risk
levels and is intended to protect currently exposed individuals as well as
those who potentially may be exposed in the future. A reasonable maximum
exposure scenario (described in the preamble section above on "baseline risk
assessment") is developed to estimate future potential uses of the site in
order to provide a basis for the development of protective exposure levels.
For example, soil that is not currently in residential use but may potentially
have future residential uses would be protected to levels appropriate to
residential uses. However, contaminated soil at an industrial site might be
-4 -6
cleaned up to a less stringent standard, but still within the 10 to 10 risk
-------
range, than soil at a residential site, as long as there is reasonable
certainty that the site would remain for industrial use only (institutional
controls may be necessary to ensure that the site is not used for residential
purposes). In the unusual circumstances where the baseline risk assessment
indicates that there is little or no chance of any direct human exposure, for
example, contaminated riverbeds in certain circumstances, remediation of the
sediments to human health-based levels may not be necessary (although cleanup
to address environmental concerns may be required).
"Potential" is a term used in a variety of contexts in ' 300.430.
When "potential" is used to describe risk, exposure, exposure pathways or
threats, it means a reasonable chance of occurrence within the context of the
reasonable maximum exposure scenario developed for that particular site (see
preamble discussion above on "baseline risk assessment").
-6
At some sites, it is not certain that a risk level of 10 will actually
_ £
be attained, even when treatment technology designed to achieve 10 is
selected, due to the presence of certain site-specific exposure factors. Such
factors may indicate the need to establish a risk goal that is more protective
_ £
than the overall goal of 10 . These site-specific exposure factors include
but are not limited to: the cumulative effect of multiple contaminants; the
potential for human exposure from other pathways at the site; population
sensitivities; potential impacts on environmental receptors; and cross-media
impacts. In addition, even if not specified as a goal, a cleanup more
_ 0
stringent than 10 may be achieved m some cases due to the nature of the
treatment technology used. Remedial technologies exist that, in the process
-4 -6
of meeting remediation goals within the range of 10 to 10 risk, can achieve
_ 0
risk reduction for particular contaminants below 10
In summary, EPA's approach allows a pragmatic and flexible evaluation of
potential remedies at a site while still protecting human health and the
_ 0
environment. This approach emphasizes the use of 10 as the point of
departure while allowing site- or remedy-specific factors, including potential
future uses, to enter into the evaluation of what is appropriate at a given
_ 0
site. As risks increase above 10 , they become less desirable, and the risk
to individuals generally should not exceed 10 4.
In response to other comments received on the risk range issues, EPA
does not agree that cleanup should always be to background levels. In some
cases, background levels are not necessarily protective of human health, such
as in urban or industrial areas; in other cases, cleaning up to background
levels may not be necessary to achieve protection of human health because the
background level for a particular
start 55 FR 8718
contaminant may be close to zero, as in pristine areas.
Other commenters asserted that EPA must use statutorily-specified
requirements, such as MCLGs or water quality criteria (WQC), instead of a
range when setting cleanup levels. In response, EPA believes that a risk
range is necessary to assist in determining protectiveness in the absence
risk
of
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potential ARARs. Further, in cases of mixtures of chemicals where attaining
chemical-specific ARARs for each contaminant may still result in a cumulative
risk in excess of 10 4 due to additivity of the risk of the contaminants, use
of a risk range would be necessary to set a protective remediation level for
the overall medium. Finally, some commenters stressed the importance of
assumptions and methods used in conducting risk assessments to the
establishment of cleanup goals. EPA agrees. EPA discusses assumptions and
methods to be used when conducting risk assessments in greater detail in the
preamble sections above on remedial investigation and baseline risk
assessment.
Final rule: EPA has revised ' 300.430(e)(2)(i)(A)(2) to state that: "For
known or suspected carcinogens, acceptable exposure levels are generally
concentration levels that represent an excess upper bound lifetime cancer risk
-4 -6
to an individual of between 10 and 10 using information on the relationship
between dose and response."
Name: Section 300.430(e)(2). Use of point of departure.
Proposed rule: Section 300.430(e)(2)(i)(A)(2J stated that the
10 fa risk level shall be used as the point of departure for determining
remediation goals for alternatives when ARARs are not available or are not
sufficiently protective.
Response to comments: Essentially none of the commenters supported the point
of departure exactly as proposed, that is, where ARARs are lacking or are not
_ £
sufficiently protective, determination of cleanup levels would start at 10
and move within the risk range depending on certain enumerated factors.
-6
Several commenters favored use of 10 as the cleanup level. Some of
these commenters did not actually endorse the concept of a point of departure
_ £
m that they thought the overall risk of a remedy should not exceed 10 m
any case. Others essentially supported a sticky point from which departures
in the direction of increased risk would only be justified on grounds such as
infeasibility.
A number of commenters preferred the use of the full risk range rather
than a single value for the cleanup level. In certain cases it was not clear
whether commenters understood EPA's intention in having a point of departure.
One commenter said that a point of departure does not help in developing
cleanup goals. Other commenters argued that a point of departure undermines
the risk range by establishing a single value for all sites, whereas use of a
risk range accounts for variation among sites and for uncertainties in risk
assessment. Another commenter supported use of the entire range rather than
_ 0
focussing on 10 m order to foster cost-effectiveness m the program, while
several others similarly stated that a risk range, rather than a target level,
recognizes such relevant factors as toxicity, exposure potential, and cost-
benefit tradeoffs.
Several commenters proposed use of a different point of departure, and
even one which could vary depending on the site circumstances. If a point of
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—
departure is chosen, one commenter suggested that 10 is the appropriate
-4 -6
value, being within the suggested risk range of 10 to 10 . Another
commenter, on the other hand, said the point of departure should be 10 4: this
level is considered acceptably protective; it is already based on very
conservative assumptions, so that the true risk is lower; and anything lower
would be a bias toward treatment.
In opposing the proposed point of departure, one commenter suggested
that there should be different targets for various population sizes, and that
a higher value such as 10 4 is adequate for smaller populations. Others
echoed this comment, saying that population size should be a factor for moving
in the risk range, and that for small populations 10 4 suffices. One
commenter pointed out that other federal agencies have considered 10 4 as de
minimis for small populations' A commenter stated that EPA has in the past
— ^
considered 10 as insignificant when aggregate population risk is very low.
The commenter did not suggest a value but said that EPA should re-examine the
issue of not considering £ojoulatioi^_si_ze in setting cleanup levels. Finally,
one commenter suggested that risk levels could be set depending on the
conservatism of the assumptions used and other relevant factors such as the
form in which the chemical is present in the environment.
EPA believes it is necessary to explain how it intends the point of
departure to be used. Where the aggregate risk of contaminants based on
existing ARARs exceeds 10 4 or where remediation goals are not determined by
_ £
ARARs, EPA uses 10 as a point of departure for establishing preliminary
_ £
remediation goals. This means that a cumulative risk level of 10 is used as
the starting point (or initial "protectiveness" goal) for determining the most
appropriate risk level that alternatives should be designed to attain. The
_ 0
use of 10 expresses EPA's preference for remedial actions that result m
risks at the more protective end of the risk range, but this does not reflect
a presumption that the final remedial action should attain such a risk level.
Factors related to exposure, uncertainty and technical limitations may
_ 0
justify modification of initial cleanup levels that are based on the 10 risk
level. The ultimate decision on what level of protection will be appropriate
depends on the selected remedy, which is based on the criteria described in
300.430(e) (9) (iii) .
EPA believes, however, that it is both useful and necessary to have a
starting point in those cases where the remediation goal is not determined by
ARARs. Although adjustments may be necessary in determining the actual
remediation goal for a site, it is important to have an initial value to which
adjustments can be made, particularly since the risk range covers two orders
_ 0
of magnitude. By using 10 as the point of departure, EPA intends that there
be a preference for setting remediation goals at the more protective end of
the range, other things being equal. Contrary to assertions of some
commenters, EPA does not believe that this preference will be so strong as to
preclude appropriate site-specific factors. Also, EPA does not agree that
cost should be considered when setting the preliminary remediation goal
because reliable cost information is not available at this step of the
process. Cost is ultimately one of the criteria used in selecting a remedy.
EPA would like to address those commenters who suggest that the point of
-------
departure should depend on population size. At this time EPA believes that
the point of departure should be consistent across all sites. The point of
departure represents a level from which analysis should begin, regardless of
the circumstances. Preliminary and final remediation goals, i.e., target risk
levels, however, may vary from the point of departure depending upon site-
specific circumstances (see discussion above on risk range). The ultimate
role of population size in determining response priorities or remedies is
currently under
start 55 FR 8719
review by the Risk Management Council.
Final rule: EPA is revising proposed ' 300.430(e)(2)(i)(A)(2) on the point of
- 6 ™
departure as follows: "The 10 risk level shall be used as the point of
departure for determining remediation goals for alternatives when ARARs are
not available or are not sufficiently protective because of the presence of
multiple contaminants at a site or multiple pathways of exposure;..."
Name: Section 300.430(e)(9). Detailed analysis of alternatives.
Proposed rule: The purpose of the detailed analysis is to objectively assess
the alternatives with respect to nine evaluation criteria that encompass
statutory requirements and include other gauges of the overall feasibility and
acceptability of remedial alternatives (53 FR 51428) . This analysis is
comprised of an individual assessment of the alternatives against each
criterion and a comparative analysis designed to determine the relative
performance of the alternatives and identify major trade-offs (i.e., relative
advantages and disadvantages) among them. The decision-maker uses information
assembled and evaluated during the detailed analysis in selecting a remedial
action.
Response to comments: The preamble discussion of the detailed analysis
section of the RI/FS process in the proposal categorized the nine criteria
into three groups: threshold, primary balancing and modifying criteria (53 FR
51428). Although in general, commenters supported this tiered system, many
were confused about the significance of the categories in the detailed
analysis and remedy selection stages. After a careful study of the comments,
EPA has concluded that the process EPA proposed would be expressed more
clearly if the nine criteria were not divided into three categories during the
detailed analysis phase, when all nine criteria need to be objectively
assessed, but when the balancing decision is made. EPA believes that the
characterization of the criteria into the three categories is important, and
should be used during remedy selection, as discussed in that section of
today's preamble.
Some commenters asked EPA to clarify the purpose and content of the
detailed analysis. The following is a general description of the detailed
analysis. The detailed analysis of alternatives consists of the analysis and
presentation of the relevant information needed to allow decision-makers to
select a site remedy. It is not the decision-making process itself. During
-------
the detailed analysis, each alternative is assessed against each of the nine
criteria. The analysis lays out the performance of each alternative in terms
of compliance with ARARs, long-term effectiveness and permanence, reduction of
toxicity, mobility or volume through treatment, short-term effectiveness,
implementability, and cost. The assessment of overall protection draws on the
assessments conducted under other evaluation criteria, especially long-term
effectiveness and permanence, short-term effectiveness and compliance with
ARARS. State and community acceptance also are assessed, although definitive
assessments of these factors cannot be completed until the public comment
period on the draft RI/FS and proposed plan is completed. Further guidance on
this process is available in the "EPA Guidance for Conducting Remedial
Investigations and Feasibility Studies Under CERCLA," OSWER Directive No.
9355.3-01, October 1988 (Interim Final). This guidance will be updated
following promulgation of the NCP.
After making the individual criterion assessments for each alternative,
the alternatives are compared to each another. This comparative analysis
identifies the key tradeoffs (relative advantages and disadvantages) among the
alternatives with respect to the nine criteria. The purpose of this
comparative analysis is to provide decision-makers with sufficient information
to balance the trade-offs associated with the alternatives, select an
appropriate remedy for the site and demonstrate satisfaction of the CERCLA
remedy selection requirements.
In general, commenters supported the use of the nine criteria in
performing the detailed analysis. The supporters wrote that the criteria
provide the flexibility needed to analyze diverse site conditions, by allowing
the consideration of a wide range of relevant factors.
Some commenters wrote that nine criteria are too many to address in the
detailed analysis. These commenters argued that considering so many criteria
makes the evaluation too complicated. While supporting the nine criteria, one
commenter suggested adding as an additional criterion, the extent to which the
alternative utilizes permanent solutions and alternative treatment
technologies or resource recovery technologies to the maximum extent
practicable. In addition, several commenters addressed the relation of the
nine criteria used in alternatives evaluation and remedy selection to the
statutory mandates for remedy selection described in section 121 of CERCLA.
These commenters remarked that the use of the nine criteria was a significant
departure from the remedy selection criteria in the 1985 NCP, which focused on
protectiveness and cost. They also believed that increasing the number of
criteria to be considered during remedy selection reduces flexibility and
complicates an already complicated process. They suggested that the criteria
should be based directly on the statutory language. Specifically, these
commenters proposed the following four criteria: protection of human health
and the environment; compliance/waiver of ARARs; preference for permanent
solutions and treatment as a principal element; and cost-effectiveness.
Although agreeing with EPA's establishment of protection of human health
and the environment and compliance with ARARs as the first two evaluation
criteria, one commenter suggested significant modifications to the other
criteria. This commenter suggested merging the five evaluation criteria of
-------
long-term effectiveness and permanence, reduction of toxicity, mobility or
volume through treatment, short-term effectiveness, implementability, and
cost, into three broad criteria: effectiveness, implementability and cost.
This commenter noted that state and community acceptance, although relevant
considerations in remedy selection, add nothing to the feasibility study
process. The commenter believes this system would provide the most
appropriate starting point for creating a structured method for selecting a
site remedy.
EPA developed the nine evaluation criteria to give effect to the
numerous statutory mandates of section 121 and in particular, the remedial
action assessment factors of section 121(b)(1)(A)-(G). EPA does not believe
analysis of alternatives under the four criteria approach suggested by the
commenter would provide an adequate analytical framework. EPA also is not
adding as a criterion the statutory mandate to utilize permanent solutions and
alternative treatment technologies or resource recovery technologies to the
maximum extent practicable. The analysis performed pursuant to the nine
criteria concludes with selection of a remedy that meets the statutory
mandates. This analysis requires consideration of a number of factors before
making these conclusions. In particular, the mandate for cost- effective
remedies clearly requires consideration of both costs and the effectiveness of
alternatives. Similarly, EPA believes that a range of
start 55 FR 8720
factors, including long-term effectiveness and permanence, reduction of
toxicity, mobility, or volume through treatment, and short-term effectiveness,
must be considered to provide the basis for concluding that a particular
alternative represents the practicable extent to which permanent solutions and
treatment can be used at a given site. However, EPA has included two specific
statutory requirements in the criteria (protection of human health and the
environment and compliance with ARARs) in light of the paramount importance of
these mandates. EPA notes that it does have an expectation that alternatives
that will treat principal threats at sites will be considered, consistent with
the statutory preference for treatment as a principal element.
The proposed rule stated that the detailed analysis is to be conducted
on the limited number of alternatives that represent viable hazardous waste
management approaches (53 FR 51506). One commenter recommended changing the
wording to conduct a detailed analysis on those alternatives representing
"viable approaches to remedial action," rather than "viable hazardous waste
management approaches." EPA agrees with this recommendation and has
substituted the commenter's wording for the phrase in the final rule. As a
further clarification, today's rule consistently uses the term "remedial
alternative" in all pertinent places.
A discussion of each of the nine criteria follows.
1. Protection of human health and the environment. This evaluation
criterion assesses whether each alternative provides adequate protection of
human health and the environment. The overall assessment of protection draws
on the assessments conducted under other evaluation criteria, especially
-------
long-term effectiveness and permanence, short-term effectiveness, and
compliance with ARARs. Only those alternatives determined to be protective in
the detailed analysis proceed to the selection of remedy step.
One commenter noted that effectiveness, implementability, extent of
reduction in toxicity, mobility, or volume, and compliance with ARARs criteria
should be considered before evaluating the protectiveness of a remedial
alternative. EPA agrees that the protectiveness determination in the detailed
analysis draws upon the assessments conducted under other evaluation criteria,
especially long-term effectiveness and permanence, short-term effectiveness,
and compliance with ARARs. However, EPA has maintained protection of human
health and the environment as the first criterion due to the clear statutory
mandate to select remedies that are protective of human health and the
environment.
One commenter stressed that the impact of the remedial action on natural
resources must be assessed under this criterion. The commenter noted that the
use of ground-water pump and treat systems as part of a remedial action may
deplete valuable water resources, particularly in the western states. EPA
agrees that the impact of the remedial action must be assessed and calls for
this analysis under the short-term effectiveness criterion. As noted above,
the evaluations of short-term effectiveness and other criteria are used in
assessing the protectiveness of each alternative.
2. Compliance with ARARs. This evaluation criterion is used to
determine whether each alternative will meet all of its federal and state
ARARs (as defined in CERCLA section 121). The detailed analysis should
summarize which requirements are applicable or relevant and appropriate to an
alternative and describe how the alternative meets these requirements. When
an ARAR is not met, the detailed analysis should discuss whether one of the
six waivers allowed under CERCLA may be appropriate (see also preamble section
below on ARARs).
One commenter noted that the responsibility for evaluating the
applicability of ARARs waivers to a proposed remedial action lies with the
lead agency and not with the potentially responsible party (PRP). This
commenter also recommended that the lead agency evaluate potential grounds for
ARARs waivers as early as possible in the feasibility study, due to the
important role ARARs play in the ultimate remedy selection decision. EPA
supports early evaluation of ARARs by the lead agency or the PRP, as
appropriate, depending on site-specific enforcement agreements. Either the
PRP or a state may perform the ARAR analysis and recommend the applicability
of ARAR waivers, but ultimately EPA determines compliance with ARARs (and the
applicability of ARARs waivers) when it selects the remedial action, as
described in the proposed plan and finalized in the record of decision (ROD).
3. Long-term effectiveness and permanence. The analysis under this
criterion focuses on any residual risk remaining at the site after the
completion of the remedial action. This analysis includes consideration of
the degree of threat posed by the hazardous substances remaining at the site
and the adequacy and reliability of any controls (e.g., engineering or
institutional controls) used to manage the hazardous substances remaining at
-------
the site. The criterion is founded on CERCLA's mandates to select remedies
that are protective of human health and the environment and that utilize
permanent solutions and alternative treatment technologies or resource
recovery technologies to the maximum extent practicable and that maintain
protection over time.
Seeking clarification of EPA's interpretation of "permanence," one
commenter recommended that EPA define a permanent remedy as a remedy for a
particular site that results in protection of human health and the environment
without the need for significant levels of long-term operation and
maintenance. Another suggested that a permanent solution is simply a remedy
that is not an interim solution, i.e., it is a final solution. EPA evaluates
permanence to the maximum extent practicable as the degree of long-term
effectiveness and permanence afforded by a remedy. This is judged along a
continuum, with remedies offering greater or lesser degrees of long-term
effectiveness and permanence.
As a general observation, several commenters noted that many of the
criteria (e.g., long-term effectiveness, short-term effectiveness, and
reduction of toxicity, mobility or volume through treatment) overlap. EPA
acknowledges that these factors are related. They derive from the mandates of
section 121 and are designed to elicit analysis on distinct, but related
factors to perform a comprehensive analysis of each alternative. Today's rule
lists factors to be considered in performing the detailed analysis under each
of the criteria. For further guidance, see the "Guidance for Conducting
Remedial Investigations and Feasibility Studies Under CERCLA," OSWER Directive
No. 9355.3-01, October 1988 (Interim Final).
Long-term effectiveness includes a consideration of the residual risk
remaining at a site after the remedial action is complete. This assessment of
risk is conducted assuming conservative but realistic exposures. This
consideration will assess how much of that risk is associated with treatment
residuals and how much is associated with untreated waste. The potential for
this risk may be measured by numerical standards such as cancer risk levels or
the volume or concentration of contaminants in waste, media, or treatment
residuals remaining on site.
4. Reduction of toxicity, mobility or volume through treatment. This
evaluation criterion addresses the statutory preference for selecting
start 55 FR 8721
remedial actions that employ treatment technologies that permanently and
significantly reduce the toxicity, mobility or volume of the hazardous
substances as a principal element. Specifically, this analysis examines the
magnitude, significance and irreversibility of such reductions achieved by
alternatives employing treatment.
One commenter pointed out that the preamble to the proposed rule lacked
precision in stating that CERCLA section 121 mandates a preference for
remedies that permanently reduce the volume, toxicity, or mobility of the
hazardous substances. Rather, this commenter wrote, section 121 establishes a
-------
preference for remedies in which treatment permanently and significantly
reduces the volume, toxicity or mobility of the hazardous substances. The
commenter noted the omission of the word "treatment" could be important
because the ambiguous statement in the proposal would allow the conclusion
that containment qualifies as a preferred remedy. In fact, some commenters
suggested the rule contain language stating that physical control, or
containment on site, would qualify as actions achieving a reduction of
mobility for purposes of this criterion.
EPA must stress that the reductions analyzed pursuant to the reduction
of toxicity, mobility or volume criterion must be attained through treatment.
This criterion is designed to evaluate alternatives in light of CERCLA's
preference for remedial actions in which treatment which permanently and
significantly reduces the volume, toxicity or mobility of the hazardous
substances is a principal element. This criterion has been amended in today's
rule to specify analysis of the extent that toxicity, mobility or volume is
reduced through treatment.
On a related point, another commenter noted that the statute establishes
a preference for reduction of toxicity, mobility or (rather than "and") volume
through treatment. EPA agrees with this comment and today's preamble and rule
consistently refer to the reduction of toxicity, mobility or volume through
treatment.
Another commenter expressed concern that the phrase "permanently and
significantly reduces the volume, toxicity or mobility of the hazardous
substances" will be interpreted as a presumption in favor of incineration.
This commenter believes such a presumption would dramatically increase
remediation costs without providing a corresponding increase in
protectiveness. Some commenters argued that the effectiveness of different
treatment technologies should not be judged solely on the destructive
efficiency of a particular technique, such as incineration, because treatment
technologies that do not destroy hazardous constituents but rather immobilize
them chemically also are capable of protecting human health and the
environment and satisfying the statutory preference.
In response, the purpose of treatment in the Superfund program is to
substantially reduce the toxicity, mobility, or volume of hazardous substances
in order to decrease the inherent hazards posed by a site. Consistent with
the statutory preference set out in CERCLA section 121(b)(1), EPA expects to
treat the principal threats (e.g., contaminants of concern) posed by a site,
wherever practicable (see ' 300.430(a)(1)(iii)(A)). However, EPA agrees with
the commenters that more than one treatment technology is capable of
accomplishing these goals. In order to clarify this point, EPA is
establishing, as a guideline, that treatment as part of CERCLA remedies should
generally achieve reductions of 90 to 99 percent in the concentration or
mobility of individual contaminants of concern, although there will be
situations where reductions outside the 90 to 99 percent range that achieve
health-based or other site-specific remediation goals (corresponding to
greater or lesser concentration reductions) will be appropriate.
All treatment should involve well-designed and well-operated systems.
In order to achieve 90 percent or greater reductions, the systems should be
-------
designed to achieve reductions beyond the target level under optimal
conditions. If treatment results in the transfer of hazardous constituents
from one medium to another (e.g., stripping of volatile organic compounds from
sludges to air), treatment of the newly affected medium will often be
required.
The reductions suggested by this guideline for effective treatment may
be achieved by the application of a single technology or a combination of
technologies ( i.e., treatment train). In addition, EPA believes this 90 to
99 percent range allows the use of an array of technologies, including
innovative technologies. As noted above, EPA agrees that a wide variety of
treatment technologies are capable of achieving these reductions. For
example, effective treatment may potentially include bioremediation,
solidification, and a variety of thermal destruction technologies, as well as
many others. EPA supports the development and use of a diverse array of
treatment technologies to address hazardous substances at Superfund sites.
Examples of efforts to support such development and use include the Superfund
Innovative Technology Evaluation program and the increased encouragement of
treatability testing of innovative technologies during the RI/FS to improve
promotion and selection of such technologies. To provide further emphasis on
the use of innovative technologies, today's rule incorporates an expectation
that examination of such technologies shall be carried through to the detailed
analysis if those technologies have the potential and viability to perform
better than or equal to proven technologies in terms of performance or
implementability, short-term effectiveness or cost (' 300.430(a)(1)(iii)(E)).
This guideline for effective treatment is based on an evaluation by the
Superfund program of the effectiveness of treatment technologies on hazardous
constituents in sludges, soil, and debris, the most common waste addressed by
Superfund source control remedial actions ("Summary of Treatment Technology
Effectiveness for Contaminated Soil," EPA Final Report (March 1989) . This
guideline is also consistent with guidance that establishes alternate
treatment levels to be achieved when complying with the RCRA land disposal
restrictions for soil and debris through a treatability variance ("Obtaining a
Soil and Debris Treatability Variance for Remedial Actions," Superfund LDR
Guide #6A, OSWER Directive 9347.3-06FS). Both documents are available in the
docket in support of this final rule.
One commenter recommended that recycling should be considered in
assessing the extent that each alternative reduces the toxicity, mobility or
volume of the hazardous substances. Although the rule as proposed would have
allowed recycling activities to occur as part of the remedial action,
300.430(e) (9) (iii) (D) of today's rule is changed to specifically consider
the reduction of toxicity, mobility or volume of the hazardous substances
through recycling.
5. Short-term effectiveness. This evaluation criterion addresses the
effects of the alternative during the construction and implementation phase
until remedial response objectives are met. Under this criterion alternatives
are evaluated with respect to their effects on human health and the
environment during implementation of the remedial action.
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One commenter requested additional guidance on the evaluation of
short-term effectiveness. Today's rule lists the
start 55 FR 8722
factors to consider under this criterion. The assessment of short-term
effectiveness includes an evaluation of how alternatives will protect the
community during remedial actions. This aspect of short-term effectiveness
addresses any risk that results from implementation of the proposed remedial
action, such as dust from excavation, transportation of hazardous materials,
or air quality impacts from a stripping tower operation that may affect human
health. This assessment will consider who may be exposed during the remedial
action, what risks those populations may face, how those risks can be
mitigated, and what risks cannot be readily controlled. Workers are included
in the population that may be affected by short-term exposures.
This criterion also addresses potential adverse impacts on the
environment that may result from the construction and implementation of an
alternative and evaluates the reliability of the available mitigation measures
in preventing or reducing potential impacts on either of these potential
receptors. More detailed guidance on evaluating the short-term impacts of a
remedial alternative is included in the "EPA Guidance for Conducting Remedial
Investigations and Feasibility Studies Under CERCLA" (OSWER Directive 9355.3-
01, October 1988). This guidance lists relevant factors to analyze as part of
this criterion and the bases for evaluation during the detailed analysis.
This commenter also expressed concern that EPA's definition of
short-term effectiveness does not sufficiently highlight the use of
institutional controls during remedy implementation. According to this
commenter, because these techniques can substantially reduce risk, EPA should
require consideration of these controls when assessing the short-term
effectiveness of an alternative. Another commenter expanded on this concept,
stating that both institutional controls and site stabilization can be used to
mitigate the risks posed by the remedial action. This commenter argued that
use of institutional controls and site stabilization activities would allow
the use of innovative technologies, such as bioremediation, that could be
effective in the long-term. EPA agrees that short-term effects often can be
mitigated through the use of institutional controls along with other active
measures that may include interim remedies (implemented as operable units) or
removal actions. Program management principles and expectations placed in
today's rule reflect these concepts.
One commenter noted that many of the same considerations that apply to
the evaluation of long-term effectiveness also apply to evaluating the
short-term effectiveness of certain remedial techniques. In analyzing short-
and long-term effectiveness, EPA may study impacts or risks posed to many of
the same receptors. However, the focus of the analyses under the two criteria
differ. The analysis under the long-term effectiveness and permanence
criterion addresses the risk remaining after response objectives have been
met. The primary focus of this evaluation is the extent and effectiveness of
the controls that may be required to manage the risk posed by treatment
residuals and/or untreated wastes. The analysis under the short-term
-------
effectiveness criterion focuses on the effects on human health and the
environment during implementation of the remedial action.
6. Implementability. The implementability criterion addresses the
technical and administrative feasibility of implementing an alternative and
the availability of various services and materials required during its
implementation.
Some commenters linked implementability with effectiveness. These
commenters argued that the two criteria must be analyzed together because an
alternative that is not implementable also could not be effective. One
commenter asserted that implementability is site-specific and therefore should
include the variables of each site's topography, location, and available
space, capacity and technologies.
Although EPA agrees that implementability and effectiveness are related,
EPA has maintained them as separate analytical criteria. This allows distinct
analysis of the various subfactors of each criterion (such as the magnitude of
residual risk remaining at the conclusion of the remedial action for long-term
effectiveness and permanence, and the technical feasibility associated with
the remedial action for implementability), which generally do not relate to
both. EPA agrees that implementability is determined on a site-specific
basis. The factors listed by this commenter would be addressed under the
technical feasibility component of the implementability criterion. Today's
rule lists the factors to be considered under the criteria and the RI/FS
guidance provides an additional discussion.
7. Cost. Many comments reflected some confusion over the role of cost
as an analytical criterion under the detailed analysis and the required
statutory finding that the remedy selected is cost-effective. One commenter
focused on the need to distinguish the cost-effectiveness finding from the
cost evaluation criterion. EPA agrees that this distinction is an important
one. Although cost is used as a crude screen in the development and screening
of alternatives, cost is primarily addressed in the detailed analysis and
remedy selection phases of the remedial process. The detailed analysis
evaluates and compares the cost of the respective alternatives, but draws no
conclusion as to the cost-effectiveness of the alternatives. Cost-
effectiveness is determined in the remedy selection phase, considering the
long-term effectiveness and permanence afforded by the alternative, the extent
to which the alternative reduces the toxicity, mobility, or volume of the
hazardous substances through treatment, the short-term effectiveness of the
alternative, and the alternative's cost (see preamble section below on
detailed discussion of the role of cost in decision-making).
Several commenters addressed cost as an evaluation criterion. Some
noted the importance of an adequate cost evaluation in the detailed analysis
phase. EPA agrees that the evaluation of costs associated with an alternative
must be based on as complete and accurate cost data as possible. Several
commenters stated that the discount rate used to determine the net present
value creates a bias against protective remedies. Some argued that use of the
10 percent discount rate established by the Office of Management and Budget
(OMB) Circular A-94 is inappropriately high. They believe use of this
-------
discount rate artificially reduces estimates of the cost of operation and
maintenance (O&M) and encourages the selection of containment-based, low
capital, high O&M cost remedies, while discouraging high capital, low O&M cost
remedies. They commented that the discount rate of 10 percent is unrealistic
because it does not take into account long-term market conditions and the
likelihood that the beneficial value of a clean site will increase as
populations increase and natural resources become more scarce. The discount
rate may also be outdated because inflation rates have changed since the rate
was developed. The commenters stated that five percent is a more realistic
discount rate. EPA recognizes the importance of using an appropriate discount
rate when deriving estimates of project costs. EPA does not intend to create
a bias against high capital, low O&M cost remedies. EPA will follow OMB
Circular A-94 and
start 55 FR 8723
notes that OMB is currently reviewing its provisions. If and when Circular A-
94 is revised, EPA will address this matter in program guidance to ensure
consistency with Circular A-94.
EPA received the suggestion that the cost criterion should include the
assessment of savings due to recycling of salvageable or recyclable material.
EPA has not changed the rule to specifically consider revenue realized due to
recycling. However, EPA believes that to the extent response costs are
directly offset by the receipt of revenue from recycling, such funds should be
included when calculating the costs of the response action.
One commenter argued that costs of future remedial actions should be
included in the cost estimate, when there is a reasonable expectation that a
major component of a remedy may require replacement. EPA agrees and believes
that such factors may be taken into account under today's rule. Analysis
under the "long-term effectiveness and permanence" criterion should be used to
determine which alternatives may result in future costs. A detailed
statistical analysis is not required to identify probable future costs.
Rather, qualitative engineering judgment should be used to assess whether
replacement costs should be considered. EPA specifically has provided in the
RI/FS guidance that such costs are to be addressed, and if appropriate,
included in the cost estimate, when it may be reasonably assumed that a major
component of the alternative will fail and require replacement to prevent
significant exposure to contaminants. EPA notes that when developing cost
information, both direct and indirect capital and operation and maintenance
costs should be developed.
One commenter recommended considering as part of the analysis under this
criterion, costs related to losses of business activities, residential
development, and local, state, and federal tax revenues that may result from
restricting future land use and ground water use that may be necessary with
remedial actions that leave hazardous substances on site. The commenter also
said that EPA should also take into account the reductions in the values of
the neighboring properties that may occur when an inactive waste site is not
restored to unrestricted use. In response, EPA does not believe it is
appropriate under CERCLA to include these costs within this evaluation
-------
criterion. Section 111 of CERCLA governs the use of the Fund and according to
that section, these costs are not included as costs that may be incurred by
the Fund. In addition, section 107 provides the right to recover response
costs, natural resources damages and costs of certain health assessments or
health effects studies. The costs listed by the commenter also are not
included specifically within the costs recoverable under section 107.
Further, such indirect effects such as the reduction in property values are
the result of the hazardous substance activity, not the response action.
One commenter asked EPA to acknowledge that federal procurement
requirements apply to EPA contractors conducting Superfund remedial actions.
EPA agrees with the commenter that EPA contractors must comply with federal
procurement requirements and that this can reduce the cost of Fund-financed
remedial actions (e.g., contract award to responsive, responsible low bidder).
However, EPA does not believe it necessary or appropriate to acknowledge this
in the rule. Similarly, EPA received comments that it should employ cost-
cutting measures when implementing remedial actions. EPA agrees and does so
whenever possible.
EPA received the comment that the detailed analysis does not afford
sufficient weight to cost because, among the five criteria labeled as
balancing criteria in the proposal, four address effectiveness and
implementability and only one addresses cost. EPA stresses that the number of
related criteria in the detailed analysis does not relate to the importance of
each criterion. All nine criteria are important to address the requirements
of CERCLA.
8. State acceptance. This criterion reflects the statutory requirement
to provide for substantial and meaningful state involvement. State comments
may be addressed during the FS, as appropriate, although formal state comments
generally are not received until after the state has reviewed the draft RI/FS
and the draft proposed plan prior to the public comment period.
EPA received several comments stressing the importance of this
criterion. EPA agrees this consideration is important and has developed
today's rule consistent with CERCLA's emphasis on state involvement in the
remedial process (see also preamble section below on Subpart F).
9. Community acceptance. This criterion refers to the community's
comments on the remedial alternatives under consideration. For this
evaluation, community is broadly defined to include all interested parties,
including PRPs. These comments are taken into account throughout the RI/FS
process, although formal community comments are made during the public comment
period for the proposed plan and the RI/FS.
EPA received one comment suggesting that this criterion only consider
the acceptance of a party if that party resides in a community near the site.
This commenter argued that comments from parties affected only by
interference of normal commerce or residing in areas unaffected by the
potential health threat should not be afforded the same weight as those
parties residing in the nearby community. As a matter of policy, EPA places
the highest priority on comments received from the community to which the site
-------
potentially or actually poses a human health or environmental risk. However,
today's rule establishes no formal priority for evaluating community comments.
Instead, community concerns will be assessed on a site-specific basis,
allowing flexibility to meet the demands of varying site conditions and
diverse community needs.
Final rule: 1. Today's regulation revises proposed
300.430(e)(9) based on comments received on the detailed analysis of
alternatives using the nine criteria, the remedy selection, and the hierarchy
of criteria used in the analysis. The revisions made in response to comments
primarily attempt to clarify the process. The revisions reflect the fact that
the detailed analysis should be an objective assessment of the alternatives
with respect to the nine criteria and as a consequence, the threshold,
balancing, and modifying labels have been removed from the discussion of the
nine criteria during the detailed analysis and placed in the selection of
remedy section, where the criteria are actually used as threshold, balancing,
and modifying criteria.
2. The final rule requires specification of which reduction
toxicity, mobility or volume -- will be achieved by an alternative. Section
300.430(e)(9)(iii)(D)(^) is revised to indicate that recycling is an
acceptable means of accomplishing reduction.
Name: Section 300.430(f). Remedy selection.
Existing rule: The 1985 NCP calls for the selection of remedies that are
cost-effective and that effectively mitigate and minimize threats to public
health and welfare and the environment. 40 CFR 300.68 (i) (1) . In selecting
the appropriate extent of remedy, the lead agency considers cost, technology,
reliability, administrative and other concerns, and their relevant effects on
public health and welfare and the environment. Federal ARARs are used
start 55 FR 8724
as the basis for determining cleanup levels.
CERCLA, as amended in 1986, elevated the use of ARARs, including state
ARARs, as cleanup standards to a statutory requirement and provided other
requirements for remedy selection. Congress retained the requirement for
protective and cost-effective remedies and prescribed remedies that utilize
permanent solutions and alternative treatment technologies or resource
recovery technologies to the maximum extent practicable.
Proposed rule: The preamble to the proposed rule explained that selection of
a remedial action is a two step process (53 FR 51429). First, the lead
agency, in conjunction with the support agency, reviews the results of the
RI/FS to identify a preferred alternative. The lead agency presents this
preferred alternative, along with the supporting information and analysis, to
the public in a proposed plan for review and comment. Second, the lead agency
reviews the public comments, consults with the support agency to evaluate
whether the preferred plan still is the most appropriate remedial action for
the site or site problem, and makes the final remedy selection decision (see
also ' 300.515(e) for description of lead and support agency roles during the
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selection of remedy process)
The identification of the preferred alternative and the final remedy
selection decision are based on an evaluation of the major trade-offs among
the alternatives in terms of the nine evaluation criteria. Remedial
alternatives must be protective of human health and the environment and comply
with ARARs (or justify a waiver) in order to be eligible for selection. These
are the two threshold criteria from among the nine criteria.
The lead agency balances the trade-offs, identified in the detailed
analysis, among alternatives with respect to long-term effectiveness and
permanence, reduction of toxicity, mobility or volume through treatment,
short-term effectiveness, implementability, and cost. This initial balancing
determines preliminary conclusions as to the maximum extent to which permanent
solutions and treatment can be practicably utilized in a cost-effective
manner. The preamble to the proposed rule referred to the criteria used for
balancing the trade-offs as primary balancing criteria.
The alternative that is protective of human health and the environment,
is ARAR-compliant and affords the best combination of attributes is identified
as the preferred alternative in the proposed plan.
State and community acceptance are factored into a final balancing which
determines the remedy and the extent of permanent solutions and treatment
practicable for the site. State concerns will be factored into the proposed
plan to the extent they are known. However, formal state comments may not be
received until after the state has reviewed the draft RI/FS and the draft
proposed plan prior to the public comment period. Similarly, to the extent
possible, community concerns will be factored into the feasibility study and
proposed plan. However, community acceptance cannot be assessed definitively
until the formal public comment period is held.
Response to comments: 1. Structure and consistency. Although generally
supporting the use of the nine criteria in remedy selection, several
commenters expressed concern over whether the balancing process ensures
selection of remedies that comply with the statutory mandates of CERCLA. In
response, EPA believes that the remedy selection process promulgated today
effectively harmonizes the somewhat competing requirements of CERCLA, and
ensures that remedial actions will fulfill each statutory mandate.
Specifically, some commenters wrote that the absence from the rule of
the categories of threshold, balancing, and modifying criteria described in
the preamble to the proposal made the function of the criteria in remedy
selection unclear and that the proposed rule did not provide sufficient
practical guidance on remedy selection.
In response, EPA has modified the proposed rule to provide further
clarification and structure in the remedy selection process. First, EPA has
added expectations into the rule, in order to provide better guidance on the
types of remedies that EPA expects to consider in detailed analysis, and has
set out a program goal and management principles (' 300.430(a)). Second, EPA
has added structure to the process by specifying the functional categories of
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the nine criteria -- threshold, primary balancing or modifying -- in the
remedy selection portion of the rule. Third, the rule emphasizes the
importance of two of the nine criteria -- long-term effectiveness and
permanence, and reduction of toxicity, mobility or volume through treatment --
in the balancing process.
Some commenters opposed the adoption of the proposed remedy selection
framework. These commenters criticized the framework as being vague and
providing little guidance on the weight to be afforded individual selection
criteria or the order in which the criteria should be considered. The
commenters criticized the process as likely to vary from site to site,
resulting in the selection of different remedies for sites with similar
characteristics. According to these commenters, the inconsistency could
impair EPA's ability to negotiate settlements with PRPs. One commenter warned
that the fluid nature of the proposed decision-making process will make it
more difficult for states, other federal agencies, and PRPs to replicate. The
commenter fears that EPA will waste time second-guessing remedy selections and
justifying how a preferred remedy was identified by a lead agency or a PRP.
These commenters requested clear and complete directions on how to select
remedies.
In response, EPA believes that the basic remedy selection system as
revised presents a sound, workable method for selecting protective remedies
while balancing the technical, economic, and practical realities associated
with each site and with the program as a whole to arrive at appropriate
solutions. EPA believes that flexibility is needed in the remedy selection
process precisely because each Superfund site presents a different set of
circumstances. A rigid set of criteria for remedy selection, while perhaps
more easily reproduced, would not be well suited to such diverse site
circumstances, and would be less responsive to Congress' mandate to consider a
large number of factors, including protectiveness, permanence and treatment,
cost, effectiveness, and state and public participation.
At the same time, EPA agrees that clarification is needed concerning the
role and relative importance of the different criteria in remedy selection,
and has responded by categorizing the criteria by function (i.e., threshold,
balancing, and modifying), and by identifying balancing criteria that should
be emphasized. These revisions add structure to the process and indicate the
relative importance of the different criteria. The inclusion of the goal,
management principles, and expectations in the rule should also increase
national consistency by focusing detailed analysis and remedy selection on
fewer, more appropriate alternatives. EPA believes that these changes will
make it easier for the public to understand and anticipate EPA decisions.
In addition, proposed ' 300.430(f) (3) (iii) (''
300.430(f)(1)(ii)(D) and (E) in the final rule) is revised to clarify the
relation of the evaluation criteria to the statutory mandates of section 121
of CERCLA. Specifically, the regulation now states that cost-
start 55 FR 8725
effectiveness is to be determined by comparing the costs and overall
effectiveness of alternatives to determine whether the costs are proportional
-------
to the effectiveness achieved. Overall effectiveness for the purpose of this
determination includes long-term effectiveness and permanence; reduction of
toxicity, mobility, or volume through treatment; and short-term effectiveness.
The determination of which alternative utilizes permanent solutions and
alternative treatment technologies to the maximum extent practicable takes
into account long-term effectiveness and permanence; reduction of toxicity,
mobility, or volume through treatment; short-term effectiveness;
implementability; and cost, as well as state and community acceptance.
Another revision made to enhance the clarity of the regulation is the
direction at ' 300.430(f) (1) (ii) (E) that special emphasis is to be afforded
alternatives that offer advantages in terms of long-term effectiveness and
permanence, and reduction of toxicity, mobility or volume through treatment,
in performing the balancing by which the remedy is selected. These two
criteria are given primary consideration in the rule and preamble when
analyzing the relative merits of the alternatives. These criteria will be the
most important, decisive factors in remedy selection when the alternatives
perform similarly with respect to the other balancing criteria. When the
alternatives provide similar long-term effectiveness and permanence and
reduction of toxicity, mobility or volume, the other balancing criteria rise
to distinguish the alternatives and play a more significant role in selecting
the remedy. For example, if two alternatives offer similar degrees of
long-term effectiveness and permanence and reduction of toxicity, mobility or
volume through treatment, but one alternative would require more time to
complete and would have greater short-term impacts on human health and the
environment, the decision-maker would focus on the distinctions between the
alternatives under the short-term effectiveness criterion.
One commenter stated that remedies should be evaluated on a national
basis, rather than a site-specific basis to, at a minimum, determine the
relative importance of each of the nine criteria. According to this
commenter, site-specific remedy selection using balancing leads to nationally
inconsistent remedies and hides from public view the remedy selection process.
A different commenter argued that site-specific factors should dominate the
remedy selection process.
EPA believes that today's modifications to the proposal clarify the
remedy selection process and help ensure that consistent remedies are
selected. The remedy selection process in today's rule, shaped by the program
goal and expectations, promotes national consistency while allowing
consideration of important site-specific factors. In addition, EPA is
developing guidance on expected remedies for specific types of sites (e.g.,
municipal landfills) and specific types of waste (e.g., PCBs) that will assist
in streamlining decision-making and promoting greater consistency.
One commenter suggested that the selection process focus on the risk
reduction provided by the alternatives and the cost-effectiveness of each
alternative. EPA agrees with the commenter that risk reduction and cost-
effectiveness are major considerations in selecting remedial actions. The
amount of residual risk remaining after implementation of the remedy is
analyzed under the long-term effectiveness and permanence criterion in the
detailed analysis. The trade-offs associated with this criterion are balanced
-------
with the other criteria when selecting a remedy. However, today's rule
affords extra significance to the trade-offs associated with the "long-term
effectiveness and permanence" and "reduction of toxicity, mobility or volume
through treatment" criteria when comparing the attributes associated with the
alternatives.
One commenter noted that EPA had omitted in the proposal a reference to
the statute's bias against off-site land disposal of untreated waste. EPA
notes the omission and has changed proposed ' 300.430(f)(3)(iii) ('
300.430(f)(1)(ii)(E) in the final rule) to clarify that an alternative that
relies on the off-site transport and land disposal of untreated hazardous
substances will be the least favored alternative where practicable treatment
technologies are available, as determined by analysis using the nine criteria.
EPA notes that CERCLA does not express a preference for or bias against off-
site remedies involving treatment and that the NCP is similarly neutral.
Many commenters felt that protection of human health and the environment
was appropriately established as a threshold criterion. One commenter
requested that protectiveness be clearly identified as the dominant criterion
for evaluating responses conducted by PRPs. Another commenter felt that the
proposed NCP did not make it clear that the protection of human health and the
environment must be met at a minimum by all remedies.
Section 121 of CERCLA makes clear, and the legislative history confirms,
that the overarching mandate of the Superfund program is to protect human
health and the environment from the current and potential threats posed by
uncontrolled hazardous waste sites. This mandate applies to all remedial
actions and cannot be waived. This priority has been reflected in the rule by
including protection as a threshold criterion that must be satisfied by all
remedies selected under CERCLA (' 300.430(f) (1) (ii) (A)).
One commenter noted that, in general, if there will be significant
exposure during implementation of the remedy, a remedial option that can be
implemented quickly is preferable, in terms of the short-term protection it
affords, to one that can only be implemented slowly but provides greater
long-term effectiveness. EPA responds by cautioning against over-
generalization and attempting to create too rigid a formula for remedy
selection. EPA agrees that unacceptable short-term impacts can cause an
alternative to be considered non-protective of human health and the
environment and can remove that alternative from consideration as a viable
option. However, in this example, the remedy that is less effective in the
short-term (i.e., takes longer to implement) also provides greater long-term
effectiveness than the remedy without unacceptable adverse short-term impacts.
In this situation, generally EPA would evaluate the possible measures
available to mitigate the short-term impacts and thus allow the alternative to
be protective during implementation. This alternative, in other words, would
not immediately be ruled out, due to its positive performance under the
long-term effectiveness and permanence criterion.
One commenter cautioned that the threshold criteria should not be overly
restrictive, i.e., must not include overly conservative safety factors. EPA
believes it uses a sound, reasonable approach in judging the overall
-------
protection afforded by a remedial alternative. (See preamble description of
300.430(e) for a complete discussion of evaluating risks associated with
potential alternatives.) As for the requirement to meet ARARs, EPA is simply
following the mandate in the statute that on-site remedies selected under
CERCLA section 121 must meet all "applicable" and "relevant and appropriate"
requirements of federal and state environmental laws, unless a
start 55 FR 8726
waiver is appropriate under the conditions set out in CERCLA section
121(d)(4). EPA has discretion to determine whether any, all, or only a
portion of a requirement is relevant and appropriate, consistent with the
factors set out in final rule
300.400(g)(2); however, once determined to be relevant and appropriate, all
relevant and appropriate portions of the requirement must be applied as though
they were applicable (again, unless a waiver is available).
Some commenters concluded that since Congress did not list compliance
with ARARs as one of the remedy selection criteria in section 121(b), this
criterion should not be considered a threshold criterion. In addition, some
commented that protection of human health and the environment should receive
more emphasis than compliance with ARARs. EPA believes that CERCLA section
121(d)(2)(A) establishes compliance with ARARs as a threshold criterion for
remedy selection. That section requires the selection of a remedial action
that "at least attains such legally applicable or relevant and appropriate
standard, requirement, criteria, or limitation" (subject to waivers in CERCLA
section 121(d)(4)). In some situations compliance with ARARs may not result
in protective remedies because of exposure to multiple chemicals or through
multiple exposure pathways that have additive or synergistic effects. In this
case a remedy may need to achieve levels more stringent than the ARARs to
ensure protection.
One commenter argued that since different remedies must meet different
ARARs and, because meeting some ARARs precludes meeting other ARARs, some site
cleanups will not be able to meet all ARARs. Another commenter sought
clarification on comparing alternatives when different ARARs are identified
and questioned how EPA would prioritize alternatives if none meets all the
identified ARARs.
In response, EPA notes that in the detailed analysis, each alternative
is evaluated individually to determine if the alternative will be
ARAR-compliant. Each alternative will possess its own set of ARARs, and
frequently ARARs for one alternative will not be ARAR for another alternative
for the same site (e.g., an incineration alternative may have air emissions
ARARs not applicable to a bioremediation alternative). Alternatives need only
attain requirements that are applicable or relevant and appropriate for that
alternative, not all ARARs identified for any alternative at the site.
Alternatives that cannot meet all of their respective ARARs must justify a
waiver under CERCLA section 121(d)(4) (final rule 300.430(f)(1)(ii)(C)) for
each requirement that will not be met in order for that alternative to be
eligible for selection as the remedial action. Alternatives involving ARAR
waivers, of course, must also provide adequate protection of human health and
-------
the environment in order to be eligible for selection as the remedy.
2. Role of cost in cost-effectiveness determination. The appropriate
role of cost in remedy selection has been a controversial issue. EPA received
questions concerning the weight afforded each of the criteria, including cost,
when balancing the trade-offs among the criteria. Under the proposal and
today's rule, cost is considered in making two statutory determinations
required for selected remedies: that the remedy is cost-effective (i.e., the
remedy provides effectiveness proportional to its cost) and that it utilizes
permanent solutions and treatment to the maximum extent practicable. The
comments that address the role of cost in the cost-effectiveness determination
are discussed first.
According to several commenters, Congress clearly intended that remedies
would be selected based on the protectiveness afforded by the alternative and
cost would be used only to select from among protective alternatives. A
different commenter argued that the cost-effectiveness mandate must be used to
ensure that remedial actions, which must be protective of human health and the
environment, ARAR-compliant, and utilize permanent solutions and alternative
treatment technologies or resource recovery technologies to the maximum extent
practicable, achieve these mandates at the lowest possible cost.
EPA agrees that cost can only be considered in selecting a remedy from
among protective alternatives. The remedy selection process requires that
alternatives must be demonstrated to be protective and ARAR-compliant (or
justify a waiver) in order to be eligible for consideration in the balancing
process by which the remedy is selected. This sequence of steps ensures that
the selected remedy will be protective of human health and the environment and
that protection of human health and the environment will not be compromised by
other selection factors, such as cost. Several commenters supported the
proposed remedy selection process believing it ensures the selection of a
cost-effective remedy while at the same time not affording an overly dominant
role to cost.
Some commenters argued that cost should only be used to implement a
selected, protective remedy in the most cost-efficient manner, i.e., that
cost-effectiveness should only be considered after the remedy has been
selected to allow implementation in the least costly manner. The commenters
assert that their interpretation follows from the statute and the legislative
history. Another commenter asserted that cost-effectiveness primarily is a
check to prevent unreasonable expenditures and to ensure remedies are
implemented in a cost-efficient (and not necessarily the lowest cost) manner.
In response, EPA believes that cost is a relevant factor for
consideration as part of the selection of the remedy from among protective,
ARAR-compliant alternatives, and not merely as part of the implementation
phase. EPA believes this position is consistent with both the statute and
legislative history.
CERCLA, at section 121(a), states that "the President shall select
a££ro£riate_^emedial_^ctions ... which are in accordance with this section
-------
and, to the extent practicable, the national contingency plan, and which
£rovide_^o£_cost^effective_^es£onse." Thus, cost-effectiveness is established
as a condition for remedy selection, not merely as a consideration during
remedial design and implementation. Further in the statute, at section
121(b)(1), Congress again repeats the requirement that only cost-effective
remedies are to be selected, as follows: "The President shall select a
remedial action that is protective of human health and the environment, that
is cost effective, and that utilizes permanent solutions and alternative
treatment ... to the maximum extent practicable." Again, cost-effectiveness
is cited along with protectiveness as a key factor to consider in selecting
the remedy. EPA believes that the statutory language supports the use of
concepts of "cost" and "effectiveness" in this rule's nine evaluation criteria
that provide the basis for the remedy selection decision, rather than as
factors to be applied after the remedy has been selected.
EPA believes that this approach is also in line with the legislative
history underlying the SARA Amendments, which added section 121 to CERCLA.
The Conference report on SARA discussed the concept of cost-effectiveness, and
specifically approved of the approach to cost-effectiveness taken by EPA in
the 1985 NCP:
start 55 FR 8727
The provision that actions under both sections 104 and 106 mus^Joe_cost^
ef^ec^ive_^_s_^^jrecoc[nitio]^_of_JijPA^s_existincLJ3olic^^s_enti3odiec^^]^^he
Nationa^_Continc[enc^^lan.
H.R. Rep. 962, 99th Cong., 2d Sess. 245 (1986) (emphasis added).
Specifically, the 1985 NCP required that:
i^_selectin^^he_^££ro£riate_exten^_of_^emed^^ro^^mon^^he
alternatives_^ha^^il^^chieve_^dec[uate_j3rotection of public health and
welfare and the environment in accordance with 300.68 (i) (1), the lead
ac[enc^^il^_considej^_cos^, technology, reliability, administrative and
other concerns, and their relevant effects on public health and welfare
and the environment.
40 CFR 300.68(i)(2) (emphasis added). Thus, the 1985 NCP provided that cost
should be a factor in the selection of a remedy, and emphasized that cost may
be used to select "among" those alternatives that are protective;
significantly, the 1985 rule does not contemplate a unique protective remedy
in most cases, for which cost would simply be used to decide on possible
implementation mechanisms.
The preamble to the 1985 NCP goes on to explain in more detail the role
of cost in that rule:
The approach embodied in today's rule is to select a cost-effective
alternative from a ranc[e_of_jremedies_^ha^j3rotects_^he_j3ublic_Jiealt]^^nd
welfare and the environment. First, it is clear that if all the
-------
remedies examined are ecjually feasible, reliable, and provide the same
level of protection, the lead agency will select the least expensive
remedy. Second, where all factors are not equal, the lead agency must
evaluate the cost, level of protection, and reliability of each
alternative. In evaluating the cost of remedial alternatives, the lead
agency must consider not only immediate capital costs, but also the
costs of operating and maintaining the remedy for the period required to
protect public health and welfare and the environment. For example, the
lead agency might select a treatment or destruction technology with a
higher capital cost than long-term containment because treatment or
destruction might offer a permanent solution to the problem.
k k k
Finall^_^he_^eac^^c[enc^^oulc^jio^^lwa^s_selec^^he_jnios^j3rotective
o£tionJ_^e2ardless_of_cost;__The_lea^^2enc^^oul^^nstea^_consider
c£s^sJ_^echnoloc^i_^reliabilit^i_^dministrative_^nc^_othej^_concernsJ_^nd
theij^_effects_o]^j3ublic_Jiealt]^^nc^^elfare_^nc^^he_environment^__Thi_s
allows_selectio^_of_^^^lternative_^ha^^s_^he_^nos^^££ro£riate_^o^^he
sj3ecific_site_^i^_c[uestio]ii
50 FR at 47921 (Nov. 20, 1985) (emphasis added).
Today's rule continues the approach embodied in the 1985 NCP, although
some of the terminology has changed. First, the approach promulgated today
requires that alternatives are determined to be adequately protective and
ARAR-compliant before cost-effectiveness is considered in remedy selection
(see ' 300.430(f)(1)(ii)(D)). Second, today's rule recognizes that a
range of alternatives can be protective and ARAR-compliant, and that cost is a
legitimate factor for choosing among such alternatives.
The 1985 NCP based the cost-effectiveness determination on technology,
reliability, administrative, and other concerns and their effects on public
health and welfare and the environment. Today's rule considers basically the
same factors but has recast them to reflect CERCLA's preferences and mandates.
For example, technology is considered under the criterion of reduction of
toxicity, mobility, or volume through treatment for treatment performance;
long-term effectiveness and permanence for residuals, and short-term
effectiveness for adverse impacts. Reliability of treatment technology is
considered under reduction of toxicity, mobility, or volume through treatment.
Reliability of long-term management controls used to address treatment
residuals is considered under long-term effectiveness and permanence. E^ffects^
of_^lternatiyes_oi^j3rotectio]^_of_Jiuma]^Jiealt]^^nc^^he_enyironment is
considered under short- and long-term effectiveness. Administrative_^nc^_other
concern^are replaced by the implementability criterion, which is not
considered in determining cost-effectiveness but is used in determining the
extent to which permanent solutions and treatment can be practicably utilized,
along with state and community acceptance.
In addition to endorsing the 1985 NCP approach to cost-
the SARA Conference Report went on to discuss the Conferees'
of cost-effectiveness in the remedy selection process:
effectiveness,
view of the role
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The term "cost-effective" means that in determining the appropriate
level of cleanup the President first determines the appropriate level of
environmental and health protection to be achieved and then selects a
cost-efficient means of achieving that goal. Only after the President
determines, by the selection of applicable or relevant and appropriate
requirements [ARARs], that adequate protection of human health and the
environment will be achieved, is it appropriate to consider cost-
effectiveness .
H.R. Rep. 962, 99th Cong., 2d Sess. 245 (1986).
As the Conference Report contemplated, where there is an applicable or
relevant and appropriate requirement (ARAR) that defines the "appropriate
level of environmental and health protection to be achieved," e.g., a Maximum
Contaminant Level (MCL) for ground water, EPA will select an appropriate and
cost-efficient technology for achieving that level under today's rule. If two
or more alternatives are determined to be comparably effective in achieving
that MCL standard and level of protection, the least costly of the
alternatives would be selected as the cost-effective solution under today's
rule.
However, the situation is often more complicated. Indeed, in most
cases, there will not be one level or standard -- e.g., one contaminant-
specific ARAR -- that defines protectiveness, but rather, there will be a
ranc^e of protective, ARAR-compliant alternatives eligible for selection that
vary in their costs and effectiveness.
There are two principal reasons for this. First, ARARs are not
available in all situations. Contaminant-specific ARARs have been promulgated
for a small percentage of contaminants, and even if contaminant-specific ARARs
were available for some relevant substances, they generally do not define
protective levels for contaminated soils nor do they always define protective
levels for mixtures of chemicals (typical Superfund site situations). Thus,
EPA must evaluate additional information to determine what remedies would
protect human health and the environment; the answer, as reflected by this
final rule's definition of an acceptable risk "range," is that there are
generally a range of remedies that may be protective.
The second major reason that there will not be one level or standard
that defines protectiveness in most cases, is that the NCP requires the
development of alternatives that represent di_stinc^_stratec[ie£ for cleaning up
See final rule ' 300.430(f) (1) (ii) (D) , which provides that only after an
alternative is found to be "protective and ARAR-compliant," is the alternative
evaluated based on cost or other balancing factors.
For example, although there are a large number of hazardous substances that
may contaminate the ground water, final MCL levels have only been promulgated
for approximately 31 chemicals (assuming "radionuclides" are grouped, and
considered to be one chemical). See 40 CFR 141.11 - 141.16; 40 CFR 141.61 -
141.62; and 54 FR 27567 (June 29, 1989).
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the site or site problem. These alternatives will achieve protection of human
health and the environment through different methods (e.g., treatment,
containment) or combinations of methods and will often involve different
ARARs, particularly action-specific requirements. (As
start 55 FR 8728
noted above, e.g., incineration may have a potential ARAR relating to air
emissions that a chemical treatment option would not.) Different methods of
protection typically will vary in their costs and effectiveness (e.g.,
treatment residuals, short-term impacts). Where costs and effectiveness vary
among protective and ARAR-compliant alternatives, it is necessary to evaluate
the relationship of costs to effectiveness within and across alternatives to
identify which options afford overall effectiveness proportional to their
costs .
EPA believes that the intent of the SARA Conference Report was to make
clear that cost-effectiveness cannot be used to justify selection of a remedy
that does not protect human health and the environment. By following the
approach of the 1985 NCP, and by considering cost-effectiveness only after EPA
has identified protective remedial options, EPA believes its approach is
consistent with the objectives and intent of Congress.
Some commenters urged that EPA highlight cost in the remedy selection
process, elevating cost-effectiveness to a threshold criterion, in recognition
of the mandate for cost-effective remedies. Several commenters suggested
several reasons why cost-effectiveness should be considered a threshold
criterion. One commenter stated that the legislative history indicates that
cost-effectiveness should be a threshold. Another commenter indicated that
cost is considered throughout the FS and is the only truly objective criterion
of the nine and that, in practice, EPA has made its decisions with cost as a
primary consideration. Another commenter sought explicit confirmation in the
rule that regardless of how the five factors balance out, only cost-effective
remedies may be selected. Other commenters wanted clarification concerning
the weight afforded each of the criteria, including cost, when balancing the
trade-offs among the criteria.
In response to the comments urging an increased role of cost or
requesting clarification on the role of cost, EPA notes that it has
established cost as one of the evaluation criteria in the detailed analysis
and that the final rule explains more clearly how cost is to be considered in
determining cost-effectiveness and the practicable extent to which permanent
solutions and treatment can be used.
EPA agrees that cost-effectiveness is like the two threshold criteria in
that it is a statutory requirement with which an alternative must comply in
order to be eligible for selection as the remedy. The statutory finding of
cost-effectiveness is not "balanced," with any other statutory requirement,
Location-specific ARARs and action-specific ARARs are discussed in more
detail in the preamble to the proposed NCP, 53 FR at 51437 (Dec. 21, 1988)
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but rather certain evaluation criteria are balanced to reach the conclusion
that the remedy is cost-effective. More than one alternative can be cost-
effective .
EPA has decided, however, not to establish cost-effectiveness as a
threshold finding largely due to the sequence in which the statutory findings
are made. When EPA begins the selection step, information is readily
available from the detailed analysis to determine immediately which
alternatives are protective and ARAR-compliant and therefore eligible for
selection. The focus of the remedy selection process from this point forward
is on drawing conclusions about the distinguishing differences among eligible
options to determine which alternative represents the maximum extent to which
permanent solutions and treatment can be utilized in a cost-effective manner.
The findings of cost-effectiveness and the extent to which permanent
solutions and treatment are practicable both derive from the balancing of
these differences or tradeoffs.
Commenters asked EPA to clarify the measure of effectiveness used in the
determination that costs are proportional to an alternative's overall
effectiveness. Overall effectiveness, as used in the cost-effectiveness
determination, is a composite of long-term effectiveness and permanence;
reduction in toxicity, mobility or volume of the hazardous substances through
treatment; and short-term effectiveness. The relationship between overall
effectiveness and cost is examined across all the alternatives to identify
which options afford effectiveness proportional to their cost.
Because some commenters were confused by the description of cost-
effectiveness in proposed ' 300.430(f)(4)(ii)(D)("the remedy provides overall
effectiveness proportional to its costs"), EPA believes that it is necessary
to better express its intent. This description of cost-effectiveness is in
final
'' 300.430(f)(1)(ii)(D) and 300.430(f)(5)(ii)(D).
EPA uses the term "proportional" because it intends that in determining
whether a remedy is cost-effective, the decision-maker should both compare the
cost to effectiveness of each alternative individually and compare the cost
and effectiveness of alternatives in relation to one another (see 53 FR 51427-
28). In analyzing an individual alternative, the decision-maker should
compare, using best professional judgment, the relative magnitude of cost to
effectiveness of that alternative. In comparing alternatives to one another,
the decision-maker should examine incremental cost differences in relation to
incremental differences in effectiveness. Thus, for example, if the
difference in effectiveness is small but the difference in cost is very large,
a proportional relationship between the alternatives does not exist. The more
expensive remedy may not be cost-effective. EPA does not intend, however,
that a strict mathematical proportionality be applied because generally there
is no known or given cost-effective alternative to be used as a baseline. EPA
believes, however, that it is useful for the decision-maker to analyze among
alternatives, looking at incremental differences.
EPA believes that using the term "proportional" describes well this type
of multidimensional analysis. Using such an analysis should enable the
decision-maker to determine whether an alternative represents a reasonable
-------
value for the money; more than one alternative may be considered cost-
effective .
In response to the comment that cost should be used to distinguish
between comparably protective remedies, EPA notes that many alternatives will
be protective but will achieve that protection through different methods or
combinations of methods, such that the commenter's characterization of
alternatives as "comparably protective" may not be appropriate (though all
alternatives may be protective). However, alternatives may emerge from the
detailed analysis as comparably "effective," in terms of the three
effectiveness criteria of long-term effectiveness and permanence, reduction of
toxicity, mobility or volume through treatment and short-term effectiveness;
in that event, the least costly of the comparably effective alternatives would
be identified as cost-effective while the others would not. However, because
the remedy selection process usually involves consideration of a range of
distinct alternatives that generally vary in their effectiveness and cost,
most often a comparative analysis of the relationship between the overall
effectiveness of the alternatives and their costs will be required to
determine which alternatives are cost-effective (i.e., provide overall
effectiveness proportional to their costs).
One commenter suggested adding the following to proposed
300.430(f)(3): "Remedies selected shall be cost-effective relative to other
alternatives. In evaluating the cost-effectiveness of proposed alternatives,
EPA shall take
start 55 FR 8729
into account the total short- and long-term cost of such actions, including
the costs of operation and maintenance for the entire period during which such
activities will be required. A cost-effective remedy is one with costs
proportional to the remedy's overall effectiveness."
EPA has not incorporated the entire suggested statement into the rule.
EPA believes the commenter's statement is too narrow, because several types of
costs are factored into the evaluation of the cost of the remedy during the
detailed analysis. These costs include, but are not limited to, the direct
and indirect costs identified by the commenter. Also, the language does not
reflect that overall effectiveness involves a composite of effectiveness
factors, i.e, long-term effectiveness and permanence, toxicity, mobility or
volume reduction through treatment, and short-term effectiveness. EPA does
agree with the commenter that a cost-effective remedy is one with costs
proportional to the remedy's overall effectiveness. A more detailed
discussion of the types of costs that may be considered is included in EPA's
RI/FS guidance (cited above).
One commenter argued that because the requirement that all remedies be
cost-effective is unconditional, should EPA select a remedy requiring
treatment techniques that are more stringent than health-based ARARs or the
-4 -6
10 to 10 acceptable risk range, EPA must demonstrate the ability of the
techniques to provide meaningful and necessary risk reductions at a reasonable
cost. Although EPA generally will not select a remedial action specifically
-------
- 6 -7
to achieve a risk level below 10 (e.g., 10 ), technology used m
implementing the selected remedy could actually achieve additional risk
_7
reduction (e.g., 10 ) . EPA agrees with the commenter that as with any remedy
selected under CERCLA section 121, a remedy selected with a risk level below
_ £
10 must be cost-effective (and meet the other requirements of section
121) .
Another commenter suggested that EPA add language to the rule stating
that EPA shall select a remedy with associated risk lower than 10 4 only when
necessary for protection of human health or the environment or compliance with
ARARs, or if EPA can demonstrate that such risk reductions can be achieved at
a reasonable cost. In response, EPA explains that once levels are established
for carcinogens that will satisfy ARARs, EPA will consider cumulative or
synergistic effects from multiple contaminants or multiple exposures. For
_ £
carcinogens without ARARs, 10 is a point of departure from which technical,
uncertainty and exposure factors are used to establish preliminary remediation
goals, which include a target risk level. Final remediation goals are
determined in the remedy selection decision by balancing the major trade-offs
among the alternatives based on the evaluation criteria (as described in
300.430(f) (1) (ii)) , which will establish the specific level within the
acceptable risk range the remedy will be designed to achieve. (See preamble
discussion above on risk range.)
One commenter requested clarification that the cost-effectiveness
requirement applies equally to Fund-financed and PRP-financed remedies.
However, several other commenters asserted that the cost-effectiveness
requirement pertains only to remedies that EPA intends to seek from PRPs or to
fund itself. When the PRPs are proposing a remedy, according to these
commenters, cost-effectiveness is a matter only for the PRPs, not the
government.
EPA provides the following clarification. The statutory requirement
that each remedy selected be cost-effective applies to all Fund-financed as
well as all PRP-financed remedies under CERCLA.
3. Cost and practicability. Some commenters requested clarification of
the proper analysis of trade-offs between cost-effectiveness and the practical
limitations of treatment technologies on one hand, and the mandate to utilize
treatment to the maximum extent practicable on the other. In addition, one
commenter wrote that the proposed process blurs the two concepts of cost
effectiveness and practicability. Some commenters noted that cost must be
considered in determining what is "practicable." EPA responds that cost is
considered in making both findings as are certain other criteria. Cost is
considered in determining cost-effectiveness to decide which options offer a
reasonable value for the money in light of the results they achieve. Cost
differences must also be considered in the context of all other differences
between alternatives to reach a conclusion as to which alternative, all things
considered, provides the most appropriate solutions for the site or site
problem. It is this judgment that determines the maximum extent to which
permanent solutions and treatment are practicable for the site or site problem
being addressed. Criteria other than cost that are also used to make both
findings are long-term effectiveness and permanence, reduction in toxicity,
mobility or volume through treatment, and short-term effectiveness. However,
-------
the determination of "practicability" also takes into account the
implementability of the remedy and state and community acceptance.
In response to the comment that EPA may not select a non-permanent
remedy if a permanent remedy is practicable, EPA notes that the final
balancing by which the remedy is selected decides, from among protective,
cost-effective alternatives, the extent to which permanent solutions and
treatment are practicable for the site. EPA must select an alternative
providing the maximum permanence and treatment practicable. EPA uses the
balancing and modifying criteria to determine what is practicable. A
commenter indicated that PRPs must be required to clean up the released
hazardous substances to the maximum extent practicable. EPA agrees; PRP
cleanups are subject to the same standards as Fund-financed remedial actions.
Several commenters addressed specifically the statutory mandate to
utilize permanent solutions and alternative treatment technologies or resource
recovery technologies to the maximum extent practicable. One commenter
suggested establishing this statutory mandate as a threshold criterion.
Similarly, another commenter argued that since the concepts of protection of
human health and the environment, cost-effectiveness, and the preference for
permanent solutions and alternative treatment technologies or resource
recovery technologies are specifically grouped together by Congress, these
criteria should be balanced with each other in the same context in the remedy
selection process of the NCP. The commenter urged elimination of the
distinctions between the threshold and primary balancing criteria.
EPA believes that it has established an appropriate process for
addressing all these provisions, first by identifying protective, ARAR-
compliant alternatives eligible for selection, and then by balancing tradeoffs
among alternatives with respect to the other pertinent criteria to identify a
cost-effective alternative that utilizes permanent solutions and alternative
treatment technologies or resource recovery technologies to the maximum extent
practicable. EPA does not believe that it is possible or appropriate to
address the mandate to utilize permanent solutions and treatment to the
maximum extent practicable as an evaluation criterion because this
start 55 FR 8730
mandate represents a conclusion reached about a remedy on the basis of several
evaluation factors.
Some commenters stressed that the statute does not require permanent
solutions or treatment in all cases. Another commenter argued different
criteria should be applied if EPA determines that a site is "beyond technical
and economic remediation." EPA agrees that under CERCLA, the requirement to
select permanent solutions and treatment technologies is qualified by
practicability. This concept ensures selection of remedies appropriate to the
site problems.
Some commenters noted that cost must be considered in determining what
is "practicable." As discussed above, the cost of the remedy is among the
factors considered in determining the use of permanent solutions and treatment
-------
to the maximum extent practicable.
4. State and community acceptance. One comment believed state and
community acceptance were appropriately categorized as modifying criteria.
This commenter concluded that in the statute Congress did not afford the same
weight to state and community acceptance as the other criteria. Another
commenter felt that the proposal afforded too much weight to state and
community acceptance and that these interests would exercise undue influence
over the selection of a remedy. EPA disagrees with the latter comment.
CERCLA calls for meaningful state and community involvement in selecting the
remedial action. See, e.g., sections 117 and 121(f) of CERCLA. Today's rule
provides a framework for such involvement. EPA notes, however, that
information on state and community acceptance generally will not be complete
until comments are received on the proposed plan. Once all comments are
evaluated, state and community acceptance may prompt modifications to the
preferred remedy and are thus designated modifying criteria. In no case will
EPA sacrifice protection to achieve state and community acceptance.
Several commenters suggested that consideration of state acceptance as a
modifying criterion did not adequately take into account state concerns in
remedy selection. One commenter stated that the proposed approach would
likely result in state input not being factored in until the ROD was being
prepared, which would be too late for addressing serious concerns. For this
reason, one commenter suggested making state acceptance a primary balancing
criterion.
EPA believes that the process as proposed adequately addresses state
interests. Often, a state agency may be the lead agency for RI/FS activities
at a site, directly developing, in consultation with EPA, the alternatives
that will be analyzed in detail, and the option that will be put forward as
the preferred alternative in the proposed plan. When EPA is the lead agency,
states participate as the support agency and are involved in these same
decisions. The rule provides for consideration of state concerns throughout
the remedial process, noting that such concerns should be reflected, to the
extent possible, in the proposed plan. However, the rule acknowledges that
the assessment of state concerns may not be completed until after the formal
public comment period has been held and, therefore, highlights consideration
of this criterion in the final remedy selection decision.
EPA received comments urging express recognition that Indian tribes have
the opportunity, along with states, to review draft RI/FS reports prior to
public review. These commenters requested that EPA afford substantial
deference to Indian tribe and state comments on the RI/FS workplan, the ROD
and regarding ARARs. In response, EPA notes that ' 300.515(b) allows Indian
tribes to be treated the same as states in the remedial process if certain
conditions are met, thus ensuring the Indian tribes have the opportunity to
review and comment on significant documents such as RI/FSs and RODs. EPA
recognizes the substantial role that states and Indian tribes play in the
remedial process and does not believe further emphasis is necessary in the
remedy selection portion of the rule.
Several commenters argued that community acceptance is a significant
-------
criterion and should have more influence in alternatives evaluation and remedy
selection. These commenters urged that this criterion be made a primary
balancing criterion. The commenters felt that community, as well as state
concerns, should be considered throughout the remedial process, highlighting
in their comments the desire to participate in the development of RI/FS
workplans and to participate in the detailed analysis. Similar to the
concerns expressed on the role of state acceptance, some commenters cautioned
that if community acceptance is addressed only at the ROD stage, lack of
acceptance could result in serious conflict between EPA, the state and the
community.
EPA agrees that community acceptance is extremely important and has
established a Superfund community relations program to facilitate
communication between the community and the lead and support agencies. To the
degree that community acceptance of the alternatives is known at the time of
the proposed plan, it will be taken into account in the development of the
plan. Additionally, the public may access the administrative record
throughout the remedial process and may voice concerns to the lead agency
regarding the contents of the documents contained in the record at any time.
Due to the fact that information with respect to this factor generally
will not be complete until after the official public comment period, EPA has
not included community acceptance as a primary balancing criterion. A correct
assessment of community acceptance necessarily is based on hearing from the
community as a whole. Accordingly, EPA believes it would be premature to
address this factor conclusively prior to the public comment period, during
which EPA may hear from citizens who have not been vocal earlier during the
RI/FS process. Although community acceptance is not addressed as early as the
primary balancing factors, which serve as the principal basis for determining
the preferred alternative, it nonetheless is an important factor in EPA's
final remedy selection decision. If community acceptance is known earlier, it
can be a factor in determining the preferred alternative.
In reference to the five-year review, two commenters generally endorsed
EPA's interpretation of the statutory provision in the preamble that calls for
a five year review whenever the selected remedy will leave wastes on site
above levels that allow for unlimited use and unrestricted exposure. One
commenter agreed that the five year review should focus on whether the remedy
is still protective and should consist of an examination of monitoring data
rather than new field investigations. Another commenter said that the five
year review should also examine new technologies that may have been developed
since the remedy was implemented, to the extent the remedy is not protective.
Generally, EPA agrees with these comments, and guidance is under development
to define the five-year review. EPA agrees that the review should generally
focus on monitoring data, where available, to evaluate whether the remedy
continues to provide adequate protection of human health and the environment.
New technologies will be considered where the existing remedy is not
protective, but the five-year review is not intended
start 55 FR 8731
as an opportunity to consider an alternative to a protective remedy that was
-------
initially selected.
As provided in CERCLA section 120(e) (4), for federal facility sites
subject to interagency agreements (IAGs) under CERCLA section 120, the
selection of a remedial action shall be "by the head of the relevant
department, agency or instrumentality and the Administrator [of EPA] or, if
unable to reach agreement on selection of a remedial action, selection by the
Administrator." This provision is incorporated in the final rule at
300.430(f) (4) (iii) . EPA notes that where there are disagreements, EPA
may invoke the process provided for under E.O. 12580, section 10(a), to
facilitate resolution of issues, or a dispute resolution process may be
specified in the IAG itself. In any case, however, the final remedy selection
decision will be reserved for the EPA Administrator, consistent with CERCLA
sections 120(e)(4) and 120(g).
Final rule: Section 300.430(f), the selection of remedy section of the final
rule, has been substantially revised from the proposed rule in response to
comments received. Many of these changes reflect EPA's attempt to clarify the
role of the nine criteria during the remedy selection process and how the
selected remedy complies with the statutory requirements for Superfund
remedies. The promulgated rule also clarifies the role of the proposed plan
( ' ' 300.430(f) (i) (ii) and 300.430(f) (2)) and the final remedy selection ('
300.430(f)(4)), taking into consideration state and community acceptance of
the proposed plan.
1. The rule promulgated today moves the discussion of the hierarchy of
criteria in remedy selection from the detailed analysis of alternatives
section of the proposal rule to the selection of remedy section in the final
rule
(' 300.430(f)(1)(i)). The hierarchy established in today's rule represents an
important change from the hierarchy described in the preamble to the proposed
rule. This change makes clear that overall protection of human health and the
environment and compliance with ARARs (unless grounds for invoking a waiver is
provided) are threshold criteria that must be satisfied by an alternative
before it can be selected. Long-term effectiveness and permanence; reduction
of toxicity, mobility, or volume through treatment; short-term effectiveness;
implementability; and cost are primary balancing criteria. However, today's
rule places special emphasis on long-term effectiveness and permanence, and
reduction of toxicity, mobility, or volume through treatment, during the
remedy selection (' 300.430(f)(1)(ii)(E)). State and community acceptance are
modifying criteria that may have significant input in the final remedy
selection
(' 300.430(f)(4)(i)) and, to the degree they are available earlier, may affect
the development of alternatives and the selection of the proposed plan.
Formal consideration of the modifying criteria may not be available until
after the proposed plan, although informal consideration may be made earlier.
2. Today's rule makes clear that the determinations that the remedy is:
(1) cost-effective and (2) utilizes permanent solutions and alternate
treatment technologies or resource recovery technologies to the maximum extent
practicable, are separate findings that both result from balancing conducted
during the remedy selection process. The final rule also reflects the
statutory bias against off-site land disposal of untreated waste during remedy
-------
selection.
Name: Section 300.430(f)(5). Documenting the decision.
Proposed rule: Proposed '' 300.430(f)(2) and (f)(4) (renumbered as
300.430(f)(5)) required the publication of a notice of availability of the
proposed plan and the final remedial action plan. The proposed plan describes
and solicits comments on the preferred remedial action alternative and the
other alternatives considered. Following receipt and consideration of public
comments on the proposed plan, the remedy is selected and documented in a ROD.
The ROD summarizes the problems posed by a site, the technical analysis of
alternative ways of addressing those problems, and the technical aspects of
the selected remedy that are later refined into design specifications. The
ROD is also a legal document that, in conjunction with the supporting
administrative record, demonstrates that the lead and support agency decision-
making has been carried out in accordance with statutory and regulatory
requirements and that explains the rationale by which remedies were selected.
Finally, RODs are important public documents that summarize key facts
discovered, analyses performed, and decisions reached by the lead and support
agencies. The general process of documenting decisions is similar for either
operable units or comprehensive remedial actions; however, the content and
level of detail will vary depending on the scope of the action.
Response to comments: Few comments were received on the remedy selection
documentation requirements. In general, those comments requested that EPA
indicate that the ROD should explicitly document how each of the nine
evaluation criteria have been considered and should include the reasoning on
all key issues addressed in the decision process, including the bases for
remedial objectives and an explanation of why ARARs are applicable or relevant
and appropriate. EPA agrees that the consideration of the nine evaluation
criteria, the reasoning behind all key decisions, the bases for remedial
objectives, and the justification of the ARAR determinations should be
included in the ROD and sufficient discussion needs to be included in the
proposed plan so that the basis for the proposed remedy can be clearly
understood. The ROD should include a brief summary of the problems posed by
the site, the alternatives evaluated as potential remedies, the results of
that analysis, the rationale for the remedial action being selected , and the
technical aspects of the selected action. However, EPA believes that proposed
300.430(f)(4)(renumbered as ' 300.430(f)(5)) already required the
presentation and discussion of these items and that no change to the rule is
necessary. This section requires an explanation of how the nine evaluation
criteria were used to select the remedy and sets forth the following
requirements for all RODs:
1. All facts, analysis of facts, and site-specific policy determinations
considered in the course of carrying out the selection of remedy.
2. A demonstration that the decision was made in accordance with
statutory and regulatory requirements. The ROD shall discuss how the
requirements of section 121 of CERCLA have been addressed.
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3. A description of the remediation goal(s) and/or other performance
standards that the remedial action is expected to achieve.
4. A description of whether or not hazardous substances, pollutants, or
contaminants will remain at the site at levels requiring a five-year review of
the response action.
5. A discussion of significant changes in the final selected remedy from
the preferred alternative. A responsiveness summary that identifies and
responds to significant comments should be available with the ROD. This
responsiveness summary should include lead agency responses to comments made
by the support agency, as recommended by one commenter.
In addition, EPA has established detailed guidance on proposed plans,
RODs and other decision documents in
start 55 FR 8732
"Interim Final Guidance on Preparing Superfund Decision Documents" OSWER
Directive No. 9335.3-02 (October 1989).
A commenter recommended deleting the phrase "as appropriate" from the
requirement to document all facts, analyses of facts, and site-specific policy
decisions in the ROD. In response, EPA believes that in certain situations,
some information may not need to be included in the ROD, e.g., where the
information is already documented adequately in the administrative record. In
other cases, a document may not be appropriate for inclusion in the
administrative record at all (see the discussion in Subpart I on what is
appropriate for inclusion in the administrative record). Thus, EPA is not
removing the phrase "as appropriate" from the rule.
Similarly, this commenter recommended that the phrase "as appropriate"
be deleted from the requirement to indicate remediation levels, arguing that
such levels should always be documented in the ROD. EPA agrees that whenever
remediation levels, which have been renamed remediation goals, are established
they should be documented in the ROD. However, EPA believes it is necessary
to retain existing language to provide for RODs for interim actions, which may
not always specify final remediation goals, and for decisions that select no
action, which will not establish remediation goals.
Final rule: Minor clarifying changes are being made to proposed
300.430(f)(4)(renumbered as final ' 300.430(f)(5)). The rule notes that the
documentation in the proposed plan and the ROD should be at a level of detail
appropriate to the site situation.
Name: Ground-water policy.
Background: EPA's Superfund program uses EPA's Ground-Water Protection
Strategy as guidance when determining the appropriate remediation for
contaminated ground water at CERCLA sites. EPA's Ground-Water Protection
Strategy establishes different degrees of protection for ground waters based
on their vulnerability, use, and value. The goal of EPA's Superfund approach
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is to return usable ground waters to their beneficial uses within a timeframe
that is reasonable given the particular circumstances of the site. The
Superfund remedial process assesses the characteristics of the affected ground
water as the first step in deciding the remediation goal for ground-water
restoration, the timeframe within which the restoration will occur, and the
most appropriate method for achieving these goals. A determination is made as
to whether the contaminated ground water falls within Class I, II, or III.
(Guidance for making this determination is available in "EPA Guidelines for
Ground-Water Classification" (Final Draft, December 1986).)
Reasonable restoration time periods may range from very rapid (one to
five years) to relatively extended (perhaps several decades). EPA's
preference is for rapid restoration, when practicable, of Class I ground
waters and contaminated ground waters that are currently, or likely in the
near-term to be, the source of a drinking water supply. The most appropriate
timeframe must, however, be determined through an analysis of alternatives.
The minimum restoration timeframe will be determined by hydrogeological
conditions, specific contaminants at a site, and the size of the contaminant
plume. If there are other readily available drinking water sources of
sufficient quality and yield that may be used as an alternative water supply,
the necessity for rapid restoration of the contaminated ground water may be
reduced.
More rapid restoration of ground water is favored in situations where a
future demand for drinking water from ground water is likely and other
potential sources are not sufficient. Rapid restoration may also be
appropriate where the institutional controls to prevent the utilization of
contaminated ground water for drinking water purposes are not clearly
effective or reliable. Institutional controls will usually be used as
supplementary protective measures during implementation of ground-water
remedies.
For Class I and II ground waters, preliminary remediation goals are
generally set at maximum contaminant levels, and non-zero MCLGs where relevant
and appropriate, promulgated under the Safe Drinking Water Act or more
stringent state standards (see ARARs preamble section below on "Use of maximum
contaminant level goals for ground-water cleanups"). CERCLA alternate
concentration limits may also be used if the requirements of CERCLA section
121(d)(2)(B)(ii) are met (see ARARs preamble section below on "Use of
alternate concentration limits (ACLs).") The method for establishing ACLs
under CERCLA generally considers the factors specified for establishing ACLs
under RCRA with several additional restrictions. The ground water must have a
known or projected point of entry to surface water with no statistically
significant increases in contaminant concentration in the surface water, or at
any point where there is reason to believe accumulation of constituents may
occur downstream. In addition, the remedial action must include enforceable
measures that will preclude human exposure to the contaminated ground water at
any point between the facility boundary and all known and projected points of
entry of such ground water into surface water.
The Superfund program will usually consider several different
alternative restoration time periods and methodologies to achieve the
preliminary remediation goal and select the most appropriate option (including
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the final remediation goal) by balancing trade-offs of long-term
effectiveness, reductions of toxicity, mobility, or volume through treatment,
short-term effectiveness, implementability, and cost.
For Class III ground water (i.e., ground water that is unsuitable for
human consumption -- due to high salinity or widespread contamination that is
not related to a specific contamination source -- and that does not have the
potential to affect drinkable or environmentally significant ground water),
drinking water standards are not ARAR and will not be used to determine
preliminary remediation goals. Remediation timeframes will be developed based
on the specific site conditions. The beneficial use of the ground water
(e.g., agricultural or industrial use), if any, is determined; and the
remediation approach will be tailored for returning the ground water to that
designated use. Environmental receptors and systems may well determine the
necessity and extent of ground-water remediation. In general, alternatives
for Class III ground waters will be relatively limited and the focus may be,
for example, on preventing adverse spread of the significant contamination or
source control to prevent exposure to waste materials or contamination.
Widespread contamination due to multiple sources is handled in a special
way by the Superfund program. At most NPL sites, program policy is to
determine contributors to the aquifer contamination, and involve them in the
overall response action. EPA will take the lead role in managing the overall
response if the NPL site is the primary contributor to the multiple-source
problem. In the case of areawide ground-water contamination caused by
multiple sources, Superfund participation in the overall ground-water
remediation will be proportional to the contribution the NPL site(s) makes to
the
start 55 FR 8733
area wide problem, to the extent it can be determined. EPA may also take any
action necessary to protect human health and the environment, such as
providing alternate water supplies or wellhead treatment, if there is a threat
to human health and the environment.
Response to comments: The use of the Ground-Water Protection Strategy as a
framework for Superfund ground-water response actions was the subject of many
comments. Some commenters stated that the use of the strategy, and the
Guidelines for Ground-Water Classification that support the strategy, was ill-
advised and possibly illegal. Others supported the use of the strategy and
classification guidelines, and a third group supported their use, provided
site-specific decision-making concerning appropriate remediation was
maintained. In response, part of the strategy is a scheme for classifying
ground waters according to their beneficial uses. The Superfund program uses
this scheme as a framework to help decide the level of remediation that is
appropriate for that ground water. For the most highly valued uses, such as
drinking water, the most rapid remediation will be employed, to the extent
practicable. Ground water that is naturally unusable because of
characteristics such as high salinity may not be actively remediated.
Commenters questioning or objecting to the use of the Guidelines for
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Ground-Water Classification noted that the guidelines have not received
adequate notice and comment for rulemaking and have not been formally
promulgated. One of those commenters stated that the proposed NCP improperly
makes the Ground-Water Protection Strategy into a "super ARAR." EPA disagrees
that either the Ground-Water Protection Strategy or the Guidelines for Ground-
Water Classification are an ARAR. The strategy provides overarching guidance
that EPA considers in deciding how best to protect human health and critical
environmental systems threatened by contaminated ground water. EPA developed
guidelines, consistent with the strategy, as guidance to apply the
classification system. The guidelines are used by the Superfund program as
guidance to help make decisions on the level of cleanup necessary for ground
water at Superfund sites. The guidelines are not used as strict requirements.
As noted above, the strategy, and the guidelines that help implement the
strategy, are not ARARs. Rather, they help define situations for which
standards may be applicable or relevant and appropriate and help set goals for
ground-water remediation. At every site, EPA must decide the appropriate
level of remediation necessary to protect human health and the environment and
determine what requirements are ARARs based on the beneficial use of the
ground water and specific conditions of the site. The guidelines are not a
means of circumventing the selection of a remedy that will protect human
health and the environment; they are only tools to apply the ground-water
strategy. Site-specific decisions will need to be justified in the proposed
plan and the public will have an opportunity to comment on EPA's findings and
proposed actions at that time.
One commenter said that the use of a ground-water classification system
would inappropriately insert cost into cleanup decisions. EPA disagrees. The
cost of remediation does not affect the determination of the highest
beneficial use of the ground water and consequently does not affect the
classification. However, all remedies must be cost-effective, which may
affect the effort exerted to achieve the remediation goals in a shorter
timeframe. A commenter requested that EPA include cost as an explicit factor
in determining when aggressive measures will be used to address ground-water
contamination. EPA believes this is unnecessary. Cost-effectiveness is
sufficiently addressed through the determination that remedies, including
ground-water actions, are cost-effective.
One commenter opposed the classification guidelines stating that the use
of the guidelines is to argue against restoring Class III ground waters.
Unfortunately, EPA has a limited budget to clean up the many sites for which
it has responsibility. Because Class III ground waters already contain high
levels of salinity, hardness, or other chemicals; have no beneficial use to
humans or environmental ecosystems; and have a low degree of interconnection
with Class I or II ground waters (i.e., neither humans nor the environment are
threatened by contamination in these ground waters), EPA believes that scarce
resources can better be spent cleaning up sites and ground waters that do pose
a threat to human health and the environment. Several commenters supported
the use of the differential ground-water protection and noted that CERCLA
section 121(d)(2)(B)(i) refers to "the designated or potential use" of the
ground water in determining cleanup levels, reflecting Congress' intent to
apply varying cleanup standards to different kinds of ground water.
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Several commenters, while supporting EPA's position that remediation
levels for ground water will depend on the beneficial use of the ground
waters, expressed concern about the implementation of the ground-water
guidelines. Several commenters said that ground-water classification should
only be done by the states (which for these purposes includes federally
recognized Indian tribes or local governments). Another commenter stated that
classification by a state should supersede EPA's classification of ground
water unless EPA's classification would require a more stringent cleanup. EPA
basically agrees; and to the degree that the state or local governments have
classified their ground water, EPA will consider these classifications and
their applicability to the selection of an appropriate remedy.
EPA will make use of state classifications when determining appropriate
remediation approaches for ground water. When EPA must classify ground water
for a Superfund action, that classification is only used to determine the
scope of site-specific remedial actions and has no bearing outside of the
Superfund action. It is not used by Superfund to provide regional
classification of ground waters. Classification of ground waters is only done
to the extent it guides remedy selection.
If a state classification would lead to a less stringent solution than
the EPA classification scheme, then the remediation goals will generally be
based on EPA classification. Superfund remedies must be protective. If the
use of state classification would result in the selection of a nonprotective
remedy, EPA would not follow the state scheme.
Two commenters argued that ground-water classification and remediation
decisions should be based on current uses of the ground water, not just
ground-water characteristics (i.e., potential use of the ground water). EPA
disagrees. It is EPA policy to consider the beneficial use of the water and
to protect against current and future exposures. Ground water is a valuable
resource and should be protected and restored if necessary and practicable.
Ground water that is not currently used may be a drinking water supply in the
future.
Another major focus of comments was the issue of whether natural
attenuation was an appropriate method for dealing with ground-water
contamination. The comments reflect two points of view: one that supports
natural attenuation as a reasonable and cost-effective means of remediating
contaminated ground water and another that believes natural
start 55 FR 8734
attenuation is an inadequate method of cleanup.
Those commenters supportive of the use of natural attenuation as a
method of addressing ground water recognize that ground-water extraction and
treatment ("pump and treat") is generally the most effective method of
reducing concentrations of highly contaminated ground water, but note that
pump and treat systems are less effective in further reducing low levels of
contamination to achieve remediation goals. These commenters suggest that
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natural attenuation may play a vital role in achieving the final increment of
cleanup once pump and treat systems reach the point of diminishing returns.
EPA agrees with the understanding reflected in these comments that active
ground-water restoration may not always be able to achieve the final increment
of cleanup in a timeframe that is reasonable. It is in recognition of the
possible limitations on the effectiveness of pump and treat systems that EPA's
approach provides for periodic evaluation of such systems and allows for the
use of natural attenuation to complete cleanup actions in some circumstances.
In some cases, proposed ground-water remediation goals may not be achievable.
In these cases, it will be appropriate to modify the remediation goal to
reflect limitations of the response action.
Several commenters suggested that EPA use institutional controls and
natural attenuation to address ground-water contamination where human exposure
to contaminated ground water is not currently occurring but potentially may
occur. One commenter suggested that, in this situation, all ground-water
remedies should be compared with natural attenuation. In response, during the
analysis of remedial alternatives and remedy selection, EPA considers the
current and potential use of the ground water. Natural attenuation is
generally recommended only when active restoration is not practicable, cost-
effective or warranted because of site-specific conditions (e.g., Class III
ground water or ground water which is unlikely to be used in the foreseeable
future and therefore can be remediated over an extended period of time) or
where natural attenuation is expected to reduce the concentration of
contaminants in the ground water to the remediation goals -- levels determined
to be protective of human health and sensitive ecological environments -- in a
reasonable timeframe. Further, in situations where there would be little
likelihood of exposure due to the remoteness of the site, alternate points of
compliance may be considered, provided contamination in the aquifer is
controlled from further migration. The selection of natural attenuation by
EPA does not mean that the ground water has been written off and not cleaned
up but rather that biodegradation, dispersion, dilution, and adsorption will
effectively reduce contaminants in the ground water to concentrations
protective of human health in a timeframe comparable to that which could be
achieved through active restoration. Institutional controls may be necessary
to ensure that such ground waters are not used before levels protective of
human health are reached.
Commenters opposed to natural attenuation do not find this method an
acceptable substitute for treatment, noting that many contaminants at
Superfund sites are not readily degraded in the subsurface. EPA agrees that
natural attenuation will not provide contaminant reduction in all cases and
that in many situations natural attenuation will not be appropriate as the
sole remedial action. Factors that affect the ability of natural attenuation
to effectively reduce contaminant concentrations include the biological and
chemical degradability of the contaminants, the physical and chemical
characteristics of the ground water, and physical characteristics of the
geological medium.
In addition to objecting to the use of natural attenuation, some
commenters provided specific examples of where they would consider rapid
restoration of ground water to be necessary, such as water that feeds into, or
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that is interconnected with, sensitive or vulnerable aquatic ecosystems or
where contaminated ground water results in vapors that impact nearby
buildings. Under current policy, EPA determines remediation timeframes that
are reasonable given particular site circumstances. Some "ecologically vital"
ground water that feeds into or is interconnected with sensitive or vulnerable
aquatic ecosystems is treated as a Class I ground water and actively restored,
to the extent practicable. In addition, ground waters in designated wellhead
protection areas are also to be treated as Class I ground waters and will be
rapidly restored, to the extent practicable. Contamination of buildings due
to soil vapors from ground water will be addressed on a site-specific basis
and, if determined to be a continuing source of contamination, contaminated
ground water will be actively restored, to the extent practicable. In
contrast, such factors as location, proximity to population, and likelihood of
exposure may allow much more extended timeframes for remediating ground water.
One commenter felt that more realistic assumptions and models were
needed to calculate restoration times. The commenter believes EPA uses
unrealistic and unproven models that result in overly optimistic estimates of
restoration timeframes. Another commenter requested clarification on the
technical feasibility of active ground-water restoration.
In response, EPA notes that it is engaged in ongoing research and
evaluation of the effectiveness of ground-water pump and treat systems. This
analysis has confirmed the effectiveness of plume containment measures in
preventing further migration and of pump and treat systems in achieving
significant reductions of ground- water contamination. "Evaluation of Ground-
Water Extraction Remedies," EPA No. 540.2-89 (October 1989) . However, this
analysis also indicates the significant uncertainty involved in predicting the
ultimate effectiveness of ground-water pump and treat systems. In many cases,
this uncertainty warrants inclusion of contingencies in remedy selection
decisions for contaminated ground water. Where uncertainty is great, a phased
approach to remediation may be most appropriate. Such phasing might involve
initial measures to contain the contaminant plume followed by operation of a
pump and treat system to initiate contaminant removal from the ground water
and to gain a better understanding of the ground-water system at the site.
The decision as to the ultimate remediation achievable in the ground water
would be made on the basis of an evaluation of the effectiveness of the pump
and treat system conducted after a defined period of time. EPA's "Guidance on
Remedial Action for Contaminated Ground Water at Superfund Sites" (December
1988) discusses factors that may be considered in establishing restoration
timeframes.
To reflect the fact that restoration of ground water to beneficial use
may not be practicable, the expectation from the preamble to the proposal that
will be incorporated in today's rule has been modified. The expectation
concerning ground-water remediation now indicates that when ground-water
restoration is not practicable, remedial action will focus on plume
containment to prevent contaminant migration and further contamination of the
ground water, prevention of exposures, and evaluation of further risk
reduction.
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start 55 FR 8735
Another commenter contends that language in the preamble to the proposed
rule creates the impression that active restoration is not practicable in
fractured bedrock aquifers, which they stated was technically incorrect and
inaccurately reflects other work in progress within EPA. EPA is clarifying
that all of the factors listed as potentially making active ground-water
restoration impracticable, including the existence of fractured bedrock or
Karst formations, widespread plumes from non-point sources, particular
contaminants (e.g., dense non-aqueous phase liquids), and physicochemical
limitations (e.g., interactions between contaminants and aquifer material),
are only examples of situations that may make active ground-water restoration
difficult or impracticable. The presence of any of these situations does not
mean that active restoration of ground water is presumptively impracticable
and should not be considered; the decision of what ground water is or is not
practicable to restore should be made on a site-specific basis.
Final rule: An expectation regarding restoration of ground water has been
added in ' 300.430(a) (1) (iii) (F) .
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continue 55 FR 8735
SECTION 300.435. Remedial design/remedial action, operation and maintenance.
Name: Section 300.435(b)(1). Environmental samples during RD/RA.
Proposed rule: The proposed remedial design/remedial action (RD/RA) section
did not discuss QA/QC requirements for chemical and analytical testing and
sampling procedures associated with samples taken during the RD/RA for the
purpose of determining whether cleanup action levels, as specified in the ROD,
are achieved.
Discussion: Sampling and analysis plans prepared during the RI/FS are
required, under final ' 300.430(b) (8), to follow a process ensuring that data
of sufficient quality and quantity is obtained, and that such sampling and
analysis plans be reviewed and approved by EPA. In order to encourage
consistency between the QA/QC of the sampling data generated during the RI/FS
which is relied upon when determining cleanup action levels in the ROD, and
confirmatory sampling data used to ensure that cleanup action levels are met
during the RD/RA, EPA has decided that the QA/QC requirements for cleanup
action level samples under the RI/FS generally should also apply to those
taken during the RD/RA.
Final rule: The following section is added to the final rule in
300.435(b)(1) to encourage consistency between the QA/QC of RI/FS and RD/RA
samples taken for the purpose of cleanup action levels:
Those portions of RD/RA sampling and analysis plans describing the
QA/QC requirements for chemical and analytical testing and sampling
procedures of samples taken for the purpose of determining whether
cleanup action levels specified in the ROD are achieved, generally
will be consistent with the requirements of
' 300.430 (b) (8) .
Name: Section 300.435(d). Contractor conflict of interest.
Proposed rule: EPA proposed new ' 300.435(d) on contractor conflict of
interest for RD/RA and O&M activities which are Fund-financed. It states that
potential contractors will be required to provide information on their status
and on the status of their parent companies, affiliates, and subcontractors as
potentially responsible parties at the site, and that all such information
must be provided and disclosed before, and after (if so discovered) submission
of their bid or proposal or contract award. It further provides that the lead
agency should evaluate the information prior to contract award and determine
that either: (1) no conflict of interest exists which would affect their
performance; or (2) a conflict of interest exists which prevents them from
serving the best interests of the state or federal government. If such a
conflict of interest exists, the offeror or bidder may be declared to be a
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"nonresponsible" or "ineligible" offeror or bidder in accordance with
appropriate acquisition regulations and the contract may be awarded to the
next eligible offeror or bidder. The preamble to the proposed rule noted that
the lead agency may opt for actions less severe than denial of the contract
award for situations in which the contractor's role at the site has been very
minor or is not yet determined (53 FR 51453).
In the enforcement context, PRPs may undertake remedial actions under
consent decrees or court orders, and EPA commits significant oversight dollars
to such actions to ensure that the inherent conflict of interest does not
affect the proper conduct of the remedial action. By contrast, in Fund-
financed situations, EPA does not, as a routine measure, commit significant
dollars for oversight. This provision would alert EPA to potential conflict
of interest situations at Fund-lead sites, and allows EPA to decide if it is
cost-effective to award the contract and provide additional oversight.
Response to comments: A few commenters requested that EPA provide more
detailed guidance on the circumstances under which a contractor would be
determined nonresponsible or ineligible. One commenter believed that EPA did
not intend the proposed regulation to be read so restrictively as to result in
an automatic determination of being "nonresponsible", and requested additional
guidance regarding the circumstances under which a contractor's status as a
PRP is considered likely to affect contract performance. The commenter argued
that EPA has not stated in the proposal why status as a PRP necessarily raises
a conflict of interest as defined in the federal acquisition regulations
(FAR). A few commenters recognized that a potential for conflict of interest
might exist if a PRP selects a remedy for a site, or possibly if a design were
conducted by a PRP. However, for situations involving implementation of a
chosen remedy, these commenters felt it was unlikely that such conflict of
interest would occur, and requested a detailed discussion of how a
construction contractor's objectivity would be affected by its status as a
PRP. A commenter noted that EPA might err on the side of an automatic
exclusion of a contractor from conducting the remedial action if such detailed
discussion is not provided in the preamble or final rule; such actions would
thus significantly reduce competition for Superfund contracts and consequently
increase costs.
Another commenter felt that implementation of oversight by the lead
agency would alleviate EPA's concerns that the contractor would not serve the
government's best interests. The commenter also noted that EPA should apply
the rule only prospectively, in order to avoid problems associated with
disqualifying a contractor who is already undertaking work.
EPA agrees that it does not intend the proposed regulation to be read so
restrictively as to result in automatic determinations of a PRP being
considered "nonresponsible" or "ineligible". However, EPA's use of
contractors with conflicts of interest in the Superfund program has been a
major issue of concern over the past several years. After a review of
existing EPA policies and procedures covering the Superfund contracting
program along with interviews with both internal and external parties having
knowledge of EPA's administrative procedures regarding conflict of interest,
300.435(d) was proposed because it was determined that EPA's procedures for
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this issue need strengthening in order to avoid conflicts in the future.
EPA is concerned with hiring contractors (or their subcontractors) to
implement remedial actions under those
start 55 FR 8736
situations where a significant potential exists that such activity could
significantly affect the success of the lead agency's ongoing or potential
cost recovery or litigation efforts, or significantly impact the contractor's
own liabilities. For example, actions such as the gathering, uncovering or
documentation of evidence might be a standard task of a remedial action
contractor at sites with potential for cost recovery. Contractors or
subcontractors with conflicts of interest might not be completely objective or
impartial when performing this work if evidence with unfavorable ramifications
towards the contractor was encountered. Contractors or subcontractors with
conflicts might also be tempted to recommend cost-saving measures that are not
environmentally protective, in order to lower their potential cost share.
The lead agency usually conducts oversight of PRP-lead RD/RA projects in
order to ensure that the RD/RA effort is proceeding in a manner which assures
compliance with the requirements of the applicable record of decision and
enforcement order or decree. However, at Fund-lead sites, EPA does not
routinely engage in the level of scrutiny that may be necessary to prevent (or
discover) actions motivated by the liability interests of the contractor.
Thus, at a minimum, EPA needs to discover conflicts of interest that may
warrant additional scrutiny; accordingly, disclosure requirements are
necessary for Fund-lead projects.
In some cases, EPA may decide that even though a conflict of interest
with a potential contractor or PRP exists, other considerations may justify
its selection as a governmental contractor. Examples of such considerations
include the uniqueness of site conditions, remedy, or the PRP's prior
involvement at the site, the limited extent of potential liability of the
contractor (or affiliate), or situations involving a significant potential for
decreased competition or cost savings to the government (for example, if the
contractor were the best offeror). In these situations, the lead agency might
try to find an approach to mitigate such circumstances, ask offerors to list
conflicts as well as their proposed steps they would take to lessen the
conflict, or increase the level of oversight normally associated with that
activity. In other cases, however, the lead agency might decide that the
nature of the conflict overrides the potential benefits which could be
realized by use of such contractors, and that governmental oversight might not
successfully address this concern. The lead agency will evaluate each
situation on a case-by-case basis through the careful exercise of judgement
and the weighing of a variety of factors based on the specifics of the
situation being reviewed.
In making and implementing these decisions under direct federal
procurement, federal agencies are required to comply with the procedures set
out in the applicable federal acquisition regulations. See FAR 9.507. EPA
acquisitions are governed by 48 CFR 1509.507, which are consistent with the
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FAR. State procurements should follow the applicable state acquisition
regulations in making and implementing these decisions; these regulations
should be consistent with the applicable federal regulations.
EPA also does not agree that the lead agency should apply this section
of the rule prospectively only. The same risks that exist from prospective
contracts exist with regard to contracts underway. EPA, other federal
agencies and state contracting officers should review existing remedial action
contracts and determine whether the requirements set forth in this regulation
are provided for in those contracts. Where it is determined to be
appropriate, these government agency contracting officers should modify
existing remedial action contracts to ensure that contractors already
undertaking federally funded work will be required to submit information under
this section regarding any potential conflicts of interest. If EPA determines
that a conflict does exist, the agency will decide on a case-by-case basis
what action is appropriate.
Final rule: Proposed ' 300.435(d) is revised as follows to better define the
circumstances under which the lead agency would determine whether a conflict
of interest would exist, and to more accurately reflect possible EPA actions
in response to such a finding:
(d) Contractor conflict of interest. (1) For Fund-financed
RD/RA and O&M activities, the lead agency shall:
(1) Include appropriate language in the solicitation requiring
potential prime contractors to submit information on their status, as
well as the status of their subcontractors, parent companies, and
affiliates, as potentially responsible parties at the site.
(ii) Require potential prime contractors to certify that, to the
best of their knowledge, they and their potential subcontractors, parent
companies, and affiliates have disclosed all information described in
300.435(d)(1)(i) or that no such information exists, and that any such
information discovered after submission of their bid or proposal or
contract award will be disclosed immediately.
(2) Prior to contract award, the lead agency shall evaluate the
information provided by the potential prime contractors and:
(i) Determine whether they have conflicts of interest that could
significantly impact the performance of the contract or the liability of
potential prime contractors or subcontractors.
(ii) If a potential prime contractor or subcontractor has a
conflict of interest that cannot be avoided or otherwise resolved, and
using that potential prime contractor or subcontractor to conduct RD/RA
or O&M work under a Fund-financed action would not be in the best
interests of the state or federal government, an offer or bid
contemplating use of that prime contractor or subcontractor may be
declared nonresponsible or ineligible for award in accordance with
appropriate acquisition regulations, and the contract may be awarded to
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the next eligible offeror or bidder.
Name: Sections 300.5 and 300.435(f). Operation and maintenance.
Proposed rule: EPA proposed a new section that discusses operation and
maintenance (O&M), the final step in the remedial process. Proposed
300.435(f) stated that for remedial actions which use treatment or other
measures to restore ground or surface waters, the operation of such facilities
until a level protective of human health or the environment is achieved, or
for up to 10 years after construction/start-up, whichever is earlier, will be
considered part of the remedial action. EPA pays up to a 90 percent cost
share for remedial action; activities necessary after this period would be
considered operation and maintenance (O&M) under ' 300.435(f)(2) of the
proposed rule, and CERCLA section 104(c)(6).
Proposed ' 300.435(f)(3)(renumbered as final ' 300.435(f)(4)) made clear
that the following would not be considered necessary measures to restore
contaminated ground or surface water, and thus would not be eligible for up to
10 years cost-share: "(i) Source control measures initiated to prevent
contamination of ground or surface waters; and (ii) Ground or surface water
measures initiated for the primary purpose of providing a drinking water
supply, not for the purpose of restoring ground water." Proposed
300.435(f)(4)(revised and renumbered as final ' 300.435(f)(3)) then noted that
"The 10-year period will begin once the ROD has been signed, construction
activities have been completed, and the remedy is operational and functional."
Response to comments: EPA received several comments raising concerns with the
proposed rule. Since most commenters were concerned with particular sub-
components of this issue, EPA will respond separately to issues on each sub-
component. Revisions to
start 55 FR 8737
proposed '' 300.5 and 300.435(f) will be discussed at the end of these
sections.
1. Source control maintenance measures. Several commenters argued that
EPA has misinterpreted Congress's intent and does not have statutory authority
in excluding source control maintenance measures from federal funding through
the cost-sharing provisions for remedial actions. Some felt that Congress
intended that source control maintenance measures (e.g., landfill cap
maintenance and leachate collection and treatment) should be considered
necessary to the proper functioning of measures restoring ground-water quality
(e.g., ground-water pump/treat), and thus should be included within the
coverage of CERCLA section 104(c)(6). These commenters reason that if source
control maintenance measures are not operated, no restoration would occur, the
protection of public health would not be assured, and water quality would not
improve. Several commenters also argued that excluding "source control
measures" is much too broad and requires clarification and examples, and
stated that the example used in the proposed rule describing leachate control
systems for containment units (53 FR 51453-54) exemplifies ground water
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restoration as well as source control. Another felt that the only example of
a source control measure which would have operation and maintenance costs
fully funded by the states would be a leachate collection system as found in a
RCRA Subtitle C landfill.
In response, EPA has decided as a matter of policy not to fund the
operation and maintenance of source control measures (e.g., landfill cap
maintenance, leachate collection/treatment, gas collection/treatment) once
such measures become operational and functional. EPA believes that source
control maintenance measures should be treated like other O&M activities under
CERCLA section 104(c)(6)(see preamble discussion on ' 300.510(c)(1) below).
As a threshold matter, it is important to note that EPA will continue to
fund the construction of the source control measures themselves (e.g.,
construction of the landfill cap or leachate collection system). As EPA noted
in the preamble to the proposed NCP, EPA intends to pay up to a 90 percent
Fund share for all source control measures until "completion of construction
of a source control system, and ... the system is operational and functioning
properly" (53 FR 51454). After that point, when the system is simply being
maintained and the contamination from the source is being controlled, the O&M
phase begins for these measures, and EPA believes that it would be
inappropriate for the Fund to continue to pay for such activities.
Congress made clear in CERCLA section 104(c) (6) that certain ground or
surface water restoration actions would be considered "remedial action" (such
that, under EPA policy, EPA would pay up to a 90 percent cost share) as
compared to "O&M" (for which the states pay all costs under a long-standing
EPA policy). EPA has determined that although a failure to perform source
control maintenance could result in some new contamination of ground or
surface water, maintenance measures are not specific restoration actions and
do not come within the category of remedial measures "necessary to restore
ground or surface water" as used in section 104(c) (6) . Rather, they fall
within the category of normal operation and maintenance activities.
Congress was specifically concerned with including within the idea of
"remedial action" (and thereby within the group of actions funded at up to a
90 percent level by EPA), those measures that actively clean up ground and
surface water. In a discussion of the issue, the Senate Committee on
Environment and Public Works noted that EPA was paying up to a 90 percent cost
share for most active remediation efforts, such as drum removals and soil
clean up, but did not comparably share in the cost of ground or surface water
cleanup:
The Committee felt that it was important to specify what the
financial obligation of the Superfund is in regard to the cleanup
of ground and surface water contamination at sites on the National
Priority List. The current practice of the [EPA] is to finance
remedial action activities such as the removal of drums, excavation
of soil, and initial treatment of ground and surface waters on the
90/10 basis provided in section 104(c) (3) . Under this policy, the
long-term treatment of contaminated water becomes a state
responsibility one year after all other remedial actions are
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completed. The continued treatment of contaminated water, which is
in actuality a major part of the cleanup program, is considered by
EPA to be an operation and maintenance cost.
S.Rep. 11, 99th Cong., 1st Sess. at 20-21 (1985), and S.Rep. 631, 98th Cong.,
2d Sess. at 9 (1984). (Emphasis added.)
In order to distinguish between active cleanup ("remedial") actions and
O&M, Congress specified in section 104(c) (6) that remedial actions would
include those measures that are necessary to restore ground and surface water
to "a level that assures protection of human health and the environment." By
contrast, the statute provides that "[a]ctivities required to maintain the
effectiveness of such measures ... shall be considered operation or
maintenance."
This distinction flows directly from the concern, expressed by the Senate
Environment Committee, that the dividing line between remedial and O&M actions,
for the purposes of cost share funding, should be achieving protective levels:
This distinction between remedial action and operation and
maintenance should be based on the degree of cleanup that has been
achieved. This section determines that the cleanup of ground and
surface water, whether on or off-site, is a remedial action until
the protection of human health and the environment is assured....
Id. Thus, Congress appears to have contemplated that active measures necessary
to clean up (or restore) a water body (e.g., the pumping and treating of
groundwater) would be considered to be remedial action, but O&M to maintain
that remedy would not.
However, at the same time, Congress was sensitive to EPA's concern that
too broad a policy would require EPA to set aside large amounts of Superfund
money for water treatment measures, thereby limiting EPA's ability to take
other response actions. As the Senate reports noted, "[t]he reported bill
addresses this concern by putting a five-year [later changed to a 10-year] time
limit on the mandatory involvement of the federal fund in such treatment
expenses." Id. Thus, the section requires EPA to consider active restoration
measures to be remedial action until protective levels have been achieved, or
for a period of 10 years after construction and commencement of operation,
whichever is earlier.
For example, under section 104(c)(6), if EPA were to achieve protective
levels (e.g., MCLs) after 6 years of ground-water treatment, then the
"remedial" action phase would be considered complete and the ground water
restored, and activities over the next 4 years (and thereafter) to maintain the
effectiveness of that remedy would be considered to be O&M. However, these O&M
activities might well include maintenance of the cap on a landfill above the
aquifer, or continued operation of the landfill's leachate collection system.
Because these source control maintenance activities would merely "maintain the
effectiveness of the restoration" -- and not be necessary to achieve the
remedial action objectives and
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start 55 FR 8738
remediation goals in the ROD -- they are clearly the types of measures that are
not "necessary" to restore the aquifer even though if they were not performed,
some degradation of the aquifer might occur. These measures are O&M
activities, and will be funded by the state.
If, as the commenters suggest, EPA considered source control maintenance
and other O&M activities performed during the period of active restoration to
be remedial action "necessary" to restore the aquifer (on the theory that if
the O&M were not performed, the aquifer could become degraded), then EPA would
also be compelled to consider O&M to be remedial action during the period after
protectiveness levels have been reached (if less than 10 years after
construction). Such an interpretation would directly conflict with the
language and legislative history of section 104(c)(6) that ends the remedial
action stage when protective levels are achieved or in 10 years.
The commenters' interpretation would also lead to a situation where
virtually all on-site O&M activities could be characterized as "remedial
action" under section 104(c)(6), on the theory that if they were not
maintained, they might degrade the ground/surface water; again, the legislative
history (and the wording of section 104(c)(6)) do not suggest that this was
Congress' intention.
EPA's analysis is also supported by the common sense notion that once a
landfill leachate collection system has been constructed and is operational,
the releases have been controlled and the remedial action phase completed;
ongoing operation of the leachate control and cap maintenance would merely be
necessary to maintain that status quo. EPA further believes that this position
is consistent with the need to balance demands on the Fund.
The record of decision for each operable unit of a site's remedy should
clearly differentiate, where applicable, which remedial action components will
serve the function of "source control maintenance" measures as compared to
"restoration" measures. Source control maintenance, in particular, includes
maintenance of caps, flood/erosion control measures, slurry walls, gas and
leachate collection/treatment measures, and ground/surface water
interception/diversion measures. In addition, source control maintenance
measures include those leachate collection/treatment measures which function:
(1) within a containment unit, (2) within a source, or (3) immediately
downgradient and adjacent to a source, and which serve to collect leachate from
a source. In contrast, "source control action" is generally considered to
include the construction or installation and start-up -- as compared to
maintenance -- of those actions necessary to prevent the continued "release" of
hazardous substances or pollutants or contaminants into the environment from a
source (generally on top of or within the ground, or in buildings or other
structures on the site).
2. Measures whose primary purpose is to provide drinking water. Several
commenters argued that EPA has misinterpreted Congress's intent, and does not
have statutory authority, in excluding from federal funding through the cost-
sharing provisions for remedial actions, ground/surface water measures for the
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primary purpose of providing drinking water. Several commenters argue that
CERCLA section 104(c)(6) does not exclude coverage since this section provides
10-year cost share for "the completion of treatment or other measures...
necessary to restore ground or surface water to a level which assures
protection of human health and the environment." They argue that 10-year cost-
share is warranted since, if measures for providing drinking water are not
operated, no restoration would occur, the protection of public health would not
be assured, and water quality would not improve. Some commenters claim that
such a requirement would unfairly burden small communities/states which would
have to pick up the cost of treating contaminated water and/or charge a high
user fee for the use of treated water. One commenter believed that O&M funding
should be extended on a case-by-case basis where drinking water is provided and
the release at the source is controlled, but contaminant levels cannot be cost-
effectively contained.
EPA has decided as a matter of policy not to fund the operation and
maintenance of ground/surface water measures taken for the primary purpose of
supplying drinking water. Section 104(c) (6) defines as "remedial" action
(subject to up to a 90 percent EPA cost share) measures necessary to restore
ground or surface water. Providing drinking water is simply not "necessary"
for restoration. EPA recognizes that pumping and treating groundwater to
primarily provide drinking water might, over time, tend to encourage recharge
of the aquifer and could result in some localized improvement in ground or
surface water quality; however, the effect is at best tangential to, not
necessary for, restoration.
Moreover, EPA believes that the Superfund program was neither designed
nor intended to provide drinking water to local residents over the long-term;
providing drinking water generally is the responsibility of state and local
governments and utilities. CERCLA often does provide drinking water on a
temporary basis (e.g., bottled water) or construct drinking water facilities
(e.g., water line extensions or treatment plants) in order to provide
alternative water supplies; however, EPA does not believe that it is the
purpose of the federal government under Superfund authority to fund the long-
term operation and maintenance of a public works project such as a drinking
water treatment system. EPA believes that this position is consistent with use
of the Fund to implement the clear mandates of CERCLA.
The commenter suggests that if EPA does not provide the 10-year cost
share for measures taken for the purpose of providing drinking water, no
restoration will occur, and protection of human health will not be assured.
EPA disagrees. First, if the ground or surface water is contaminated by a
release under CERCLA, EPA may decide to take action with the primary purpose of
restoring that aquifer (in which case the cost share would be provided).
Second, if the state and locality believe that ground or surface water should
be treated for the primary purpose of providing drinking water, such measures
may be carried out by the state or locality itself or by the local utility. As
noted above, Superfund was not intended to be a public works program.
The ROD for each operable unit of a site's remedy, where applicable,
should clearly differentiate which remedial action components are "treatment or
other measures initiated for the primary purpose of supplying drinking water"
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versus treatment or other measures "necessary for restoration." These RODs
should clearly justify why a remedial action to restore a contaminated aquifer
is or is not determined to be appropriate, and/or why the cost-effective
selected alternative is to supply drinking water after treatment or other
measures. These decisions must follow the NCP requirements involving the
development, screening, and analysis of remedial alternatives, as well as NCP
remedy selection procedures.
3. Temporary or interim measures. One commenter argued that in
situations where a ROD for an operable unit identifies an action as temporary
or non-final in anticipation of a subsequent final remedy, interim maintenance
should not be considered O&M.
EPA has determined that, in certain cases, an interim or temporary
response
start 55 FR 8739
action is both necessary and desirable in order to control or prevent the
further spread of contamination while EPA is deciding upon a final remedy for
the site. Indeed, in many cases, a significant escalation of final restoration
remedial action costs would result if such measures were not utilized prior to
installation of the remedy for the source. Therefore, as a matter of policy,
EPA will consider, in certain cases, such interim measures to be "remedial
action" (eligible for 90 percent funding), even if the interim measures include
source control maintenance activities. Such interim action would be conducted
as an operable unit component of a remedial action.
However, this does not mean that all interim actions will be so funded.
Where EPA selects a final remedy for an operable unit (e.g., a final, as
compared to a temporary, landfill cap), then any maintenance activity for that
site will be considered O&M. It is only where the action is truly temporary,
meaning that EPA anticipates replacing it with a final measure later on, that
the activity will be considered part of the remedial action. In effect, EPA
considers these temporary stabilization actions to be a necessary part of the
remedy. Unlike normal O&M activities, these actions are not intended to
maintain the effectiveness of the remedy; they are intended to ensure that the
site conditions do not significantly worsen while EPA develops a comprehensive
final remedy. Such measures must be taken promptly in order to assure
protection of human health and the environment.
4. Time at which a remedy becomes operational and functional. The time
period for calculating when a remedial action begins for the purpose of CERCLA
section 104(c)(6) is the point at which the remedy becomes operational and
functional, and is the relevant point for starting the ten year period. In
addition, for non-ground or surface water restoration remedies, O&M begins when
the remedial action is operational and functional.
Several commenters requested clarification as to when a ground or surface
water restoration remedy becomes "operational and functional" under proposed
300.435(f)(4)(revised and renumbered as final ' 300.435(f)(2) and (3)). One
commenter felt that this determination is a matter of judgement with some
remedies, and felt that a final inspection resulting in state and EPA
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concurrence on this determination was warranted. One commenter proposed that
the period start when it is determined that the remedy works, has no start-up
problems, and is performing as designed for a reasonable period of time, or
either: (1) one year after construction is complete; or (2) after a reasonable
start-up period after construction is complete (as defined through EPA/state
SMOA, contract or agreement), whichever is longer, for each operable unit.
This is referred to as the start-up period. Another commenter proposed that
the period start when all parties (EPA, state, PRPs) agree that the remedy is
operational and functional.
In response, under ' 300.5, "operation and maintenance" means measures
required to maintain the effectiveness of response actions. Except for ground
or surface water restoration actions covered under ' 300.435(f)(3), O&M
measures are initiated after the remedy has achieved the remedial action
objectives and remediation goals in the ROD or consent decree, and is
determined to be operational and functional.
EPA generally agrees with the comments that a measure should be said to
be operational and functional approximately one year after construction has
been completed (see ' 300.510(c)). EPA does not, however, agree that in a
federal- or state-lead action, the lead agency should await the agreement of
all parties, including PRPs, before making this finding. Thus, the final rule
provides that a remedy becomes "operational and functional" either one year
after construction is complete, or when the remedy is determined concurrently
by EPA and the state to be functioning properly and is performing as designed,
whichever is earlier. This timetable is consistent with EPA experience, and
with the period of time used in construction grant regulations. See 40 CFR
35.2218(c).
However, EPA also agrees with the comment that in certain cases a remedy
may not be fully operational after a year, i.e., such that it merely needs to
be maintained or operated; thus, the state may request an EPA extension of the
one year limit for project start-up. Where EPA determines that an extension of
the start-up period is warranted, an extension would be granted. If the
request is not approved, the remedy would be considered operational and
functional one year after its construction, or on the date of the EPA/state
determination that it is operational and functional, whichever is earlier.
Other sections of the NCP also discuss state involvement during and after
remedial actions; specifically, ' 300.510(c) discusses state assurances for
assuming O&M responsibility, and
300.515(g) discusses state involvement in remedial action. In order to more
clearly describe EPA/state roles and coordination between construction
completion and O&M, and to ensure consistency when applying EPA's existing
policy for the administrative procedures required to bring sites into the O&M
phase, the following process is described.
For Fund-financed remedial actions, the lead and support agencies should
conduct a joint inspection at the conclusion of construction of the remedial
action and concur through a joint memorandum that: (1) the remedy has been
constructed in accordance with the ROD and with the remedial design, and (2)
the start-up period should begin. At the end of the start-up period, the
construction contractor or agency will prepare a remedial action report that
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the work was performed within desired specifications and is operational and
functional. The lead and support agencies will then conduct a joint inspection
in order to determine whether to accept the remedial action report.
5. When is ground or surface water considered "restored."
One commenter requested clarification in the proposed regulation regarding when
a surface or ground water is considered to have been fully restored.
Ground or surface water restoration is considered to be complete, for the
purposes of CERCLA section 104(c)(6), when the remedial action has achieved
protective levels as set in the ROD, or after 10 years, whichever is earlier.
Of course, if protective levels have not been achieved by year 10, then it may
be appropriate for the state to continue the operation of the treatment or
other restoration measures until the ground or surface water is fully restored
to levels set out in the ROD.
EPA recognizes, however, that performance of remedies for restoring
ground or surface waters can often only be evaluated after the remedy has been
implemented and monitored for a period of time. Further, some water treatment
systems may prove unable to meet cleanup goals, and instead may merely reach
the point at which it is determined that restoration to health based levels in
contaminant concentrations in the ground or surface water is not practicable.
In such cases, it may be necessary to amend the ROD and waive certain ground or
surface water requirements. Alternatively, the RODs may contemplate, as a
contingency, that it may not be technically practicable to meet the specified
levels, and thus set
start 55 FR 8740
out alternative measures to be taken under that contingency.
Performance evaluations should be conducted one to two years after the
remedy is operational and functional, in order to determine whether
modifications to the restoration action are necessary. More extensive
performance evaluations should be conducted at least every five years. After
evaluating whether cleanup levels have been, or will be, achieved in the
desired time frame, the following options should be considered: (1) discontinue
operation; (2) upgrade or replace the remedial action to achieve the original
remedial action objectives or modified remedial action objectives; and/or (3)
modify the remedial action objectives and continue remediation, if appropriate.
6. Who operates the restoration measures during 10-year period. One
commenter noted that CERCLA is unclear on who will be responsible for operating
the remedial action measures necessary during the restoration period of up to
10 years, and believed that EPA is responsible for implementing such measures
for EPA-lead sites. Another commenter felt that states should decide whether
they have the capability and/or interest in conducting operation and
maintenance, and felt that taking over this O&M would be encouraged if federal
cost-share for O&M for up to ten years is assured. One commenter argued that
section 104(c)(3)(A) of CERCLA, which requires states to assure all future
maintenance of the removal and remedial actions, means that the state will
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assume the responsibility for physically taking over the future maintenance,
not assume the responsibility for all future maintenance costs.
In response, CERCLA section 104(c) (6) defines treatment and other
measures to restore aquifers (for up to ten years) to be "remedial action," not
O&M. Therefore, the costs of operating the remedial action will be shared by
EPA and the state according to the appropriate cost sharing provisions in
CERCLA section 104(c) (3) . However, states are encouraged to conduct such
action and may be funded through a cooperative agreement for that portion of
remedial action required to restore ground or surface water to levels which
assure protection of human health and the environment (or 10 years, whichever
is earlier). Such management would include performing any necessary compliance
or monitoring requirements. The state is further encouraged to provide
necessary information to other environmental programs when such programs are
interested in activities at a Superfund site (e.g., providing information on
surface water discharges to the appropriate water office or agency).
Of course, after the restoration is considered "complete," as discussed
above (at the latest, after 10 years), the restoration activities become O&M,
and the states must assume responsibility for the management of the restoration
activities, including the costs of that O&M. This is consistent with the long-
standing policy that states are responsible for all O&M costs. (See preamble
discussion below on "Sections 300.510(c)(1) and (2). State assurances.")
Final rule: Proposed '' 300.5 and 300.435(f) are revised as follows:
1. EPA is revising the proposed rule's definition of "source control
remedial action" and is adding a separate definition for "source control
maintenance measures," as follows:
"Source control action" is the construction or installation
and start-up of those actions necessary to prevent the continued
release of hazardous substances or pollutants or contaminants
(primarily from a source on top of or within the ground, or in
buildings or other structures) into the environment.
"Source control maintenance measures" are those measures intended
to maintain the effectiveness of source control actions once such actions
are operating and functioning properly, such as the maintenance of
landfill caps and leachate collection systems.
2. In 300.5, the definition of "operation and maintenance" is changed
to refer to "measures" rather than "activities," consistent with 40 CFR Part 35
Subpart O:
"Operation and Maintenance" (O&M) means measures required to
maintain the effectiveness of remedial response actions.
3. Section 300.435(f)(1) is revised as follows to clarify the point at
which O&M measures are initiated:
Operation and maintenance (O&M) measures are initiated after the remedy
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has achieved the remedial action objectives and remediation goals in the
ROD, and is determined to be operational and functional, except for
ground or surface water restoration actions covered under
300.435(f)(3). A state must provide its assurance to assume
responsibility for O&M, including, where appropriate, requirements for
maintaining institutional controls, under ' 300.510(c).
4. A new ' 300.435(f)(2) is added to explain the use of the term
"operational and functional" in subsection (f)(1):
A remedy becomes "operational and functional" either one year after
construction is complete, or when the remedy is determined concurrently
by the EPA and the state to be functioning properly and is performing as
designed, whichever is earlier. EPA may grant extensions to the one-year
period, as appropriate.
5. Proposed ' 300.435(f)(2)(renumbered as final
300.435(f)(3)) is revised to indicate that the restoration period begins
after the remedy is operational and functional, consistent with the discussion
of O&M measures in paragraph (f)(1). This section also defines administrative
"completion." This revision also takes the place of proposed paragraph (f)(4).
(3) For Fund-financed remedial actions involving treatment or
other measures to restore ground or surface water quality to a level that
assures protection of human health and the environment, the operation of
such treatment or other measures for a period of up to 10 years after the
remedy becomes operational and functional will be considered part of the
remedial action. Activities required to maintain the effectiveness of
such treatment or measures following the 10-year period, or after
remedial action is complete, whichever is earlier, shall be considered
O&M. For the purposes of federal funding provided under CERCLA section
104(c) (6), a restoration activity will be considered administratively
"complete" when:
(i) Measures restore ground or surface water quality to a level
that assures protection of human health and the environment;
(ii) Measures restore ground or surface water to such a point that
reductions in contaminant concentrations are no longer significant; or
(iii) Ten years have elapsed, whichever is earliest.
6. Because the final NCP includes a definition of "source control
maintenance measures," proposed ' 300.435(f) (3) (i) (renumbered as final
300.435(f)(4)) is revised to add the term "measures" and to delete the phrase
"initiated to prevent contamination of ground or surface water."
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Name: Notification prior to the out-of-state transfer of CERCLA wastes.
Policy: In response to the concerns of a number of states and localities, EPA
has initiated a policy that prior to the shipment of Superfund wastes to a
permitted waste management facility out-of-state, the lead agency should
provide written notice to that state's environmental officials. EPA believes
that such notice may be appropriate, and that indeed, such notice may be
helpful in facilitating the safe and timely accomplishment of Superfund waste
shipments. Notice should be provided under this policy for all remedial
actions and non-time-critical removal actions involving the out-of-state
shipment of Superfund wastes that are known to the lead agency, including waste
shipments arising from Fund-lead responses, state-lead responses, federal
facility
start 55 FR 8741
responses and responses conducted by PRPs (emergency and time-critical removals
are not covered by this policy). This notification should specify the type and
quantity of waste involved, the name and location of the receiving facility and
the expected schedule for the transfer of the CERCLA waste. Such notification
will enable the recipient state to obtain from its permitted facilities any
other information it may need in order to support the out-of-state action.
Although this notification is neither mandated by CERCLA nor required by this
regulation, EPA believes that adherence to this procedure will help to ensure
that these waste transfers occur in a safe and expedient manner. The policy is
explained in more detail in OSWER Directive No. 9330.2-07 (September 14, 1989) .
Because CERCLA actions may be carried out under a number of mechanisms
and by a number of parties (e.g., lead state agencies, other federal agencies,
PRPs), EPA plans to issue additional guidance or regulations, if appropriate,
to implement this notification policy.
Final rule: There is no rule language on this issue.
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APPLICABLE OR RELEVANT AND APPROPRIATE REQUIREMENTS
Introduction
The November 20, 1985 revisions to the NCP required that, for all
remedial actions, the selected remedy must attain or exceed the federal
applicable or relevant and appropriate requirements (ARARs) in environmental
and public health laws. It also required removal actions to attain ARARs to the
greatest extent practicable, considering the exigencies of the circumstances.
The preamble to the 1985 revisions to the NCP stated that ARARs could be
determined only on a site-by-site basis, and it included from EPA's October 2,
1985 Compliance Policy a list of potentially applicable or relevant and
appropriate requirements. The preamble also provided a list of federal
non-promulgated criteria, advisories and guidance, and state standards "to be
considered," called TBCs. EPA also provided five limited circumstances in
which ARARs could be waived.
On October 17, 1986, CERCLA was reauthorized with additional new
requirements. Section 121 of CERCLA requires that, for any hazardous substance
that will remain on-site, remedial actions must attain requirements under
federal environmental or state environmental or facility siting laws that are
applicable or relevant and appropriate under the circumstances of the release
or threatened release at the completion of the remedial action. The statute
also retained most of the waivers, with a few additions.
Although section 121(d)(2) basically codified EPA's 1985 policy regarding
compliance with other laws, the section also requires that state standards are
also potential ARARs for CERCLA remedial actions when they are promulgated,
more stringent than federal standards, and identified by the state in a timely
manner.
Furthermore, the CERCLA amendments provide that federal water quality
criteria established under the Clean Water Act (CWA) and maximum contaminant
level goals (MCLGs) established under the Safe Drinking Water Act, must be
attained when they are relevant and appropriate under the circumstances of the
release.
Today's revision to the NCP continues the basic concept of compliance
with ARARs for any remedy selected (unless a waiver is justified). ARARs will
be determined based upon an analysis of which requirements are applicable or
relevant and appropriate to the distinctive set of circumstances and actions
contemplated at a specific site. Unlike the 1985 revisions to the NCP, where
alternatives were developed based on their relative attainment of ARARs, in
today's rule recognition is given to the fact that ARARs may differ depending
on the specific actions and objectives of each alternative being considered
(for more discussion of this point, see preamble of proposal at 53 FR 51438,
section 9).
In today's rule, EPA retains its policy established in the 1985 NCP of
requiring attainment of ARARs during the implementation of the remedial action
(where an ARAR is pertinent to the action itself), as well as at the completion
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of the action, and when carrying out removal actions "to the extent practicable
considering the exigencies of the situation."
For ease of identification, EPA divides ARARs into three categories:
chemical-specific, location-specific, and action-specific, depending on whether
the requirement is triggered by the presence or emission of a chemical, by a
vulnerable or protected location, or by a particular action. (More discussion
of these types can be found in the preamble of the proposal at 53 FR 51437,
section 6).
Response to comments: EPA received a few comments on general ARARs policies.
One commenter argued that the remedial action should not necessarily have to
attain the most stringent applicable or relevant and appropriate requirement if
a less stringent requirement provides adequate protection of human health and
the environment.
EPA disagrees. CERCLA requires that remedial actions comply with all
requirements that are applicable or relevant and appropriate. Therefore, a
remedial action has to comply with the most stringent requirement that is ARAR
to ensure that all ARARs are attained. In addition, CERCLA requires that the
remedies selected be protective of human health and the environment and attain
ARARs. A requirement does not have to be determined to be necessary to be
protective in order to be an ARAR. Conversely, the degree of stringency of a
requirement is not relevant to the determination of whether it is an ARAR at a
site and must be attained (except for state ARARs).
Another commenter asked for confirmation that variance or exemption
provisions in a regulation can be potential ARARs as well as the basic
standards. EPA agrees that meeting the conditions and requirements associated
with a variance or exemption provision can be a means of compliance with an
ARAR. For example, EPA expects that CERCLA sites will frequently be complying
with the terms of the treatability variance under the RCRA land disposal
restrictions (LDR) for soil and debris when LDR is an ARAR.
Limitations in a regulation, such as the quantity limitations that define
small quantity generators under RCRA and affect what requirements a generator
must comply with, will also affect what requirements are applicable at a CERCLA
site. However, it is possible that a requirement could be relevant and
appropriate even though the requirement is not applicable because of a
limitation in the regulation.
Indian tribe commenters contended that ARARs should not be defined as
promulgated laws, regulations, or requirements because some Indian tribe laws,
which could apply to a Superfund cleanup, may not be promulgated in the same
fashion as state or federal laws. CERCLA section 126 directs EPA to afford
Indian tribes substantially the same treatment as states for certain specified
subsections of CERCLA sections 103, 104 and 105; EPA believes, as a matter of
policy, that it is similarly appropriate to treat Indian tribes as states for
the purpose of identifying ARARs under section 121(d)(2). EPA realizes that
tribal methods for promulgating laws may vary, so any evaluation of tribal
ARARs will have to
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start 55 FR 8742
be made on a case-by-case basis. Tribal requirements, however, are still
subject to the same eligibility criteria as states, as described in
300.400(g) (4) .
Another commenter disagreed with EPA's position that environmental laws
do not apply to a CERCLA response action unless incorporated by CERCLA section
121(d). This commenter argued that EPA has confused the ARARs concept with one
of preemption of state law.
In response, SARA established a process, in CERCLA sections 121(d)(2) and
(d)(4), for how federal and state environmental laws should apply to on-site
CERCLA remedial actions, i.e., the ARARs process. Based on these provisions,
CERCLA remedies will incorporate (or waive) state standards, as appropriate
under CERCLA. Thus, although other environmental laws do not independently
apply to CERCLA response actions, the substantive requirements of such laws
will be applied to such actions, consistent with section 121(d) and NCP
300.400(g).
EPA's interpretation that CERCLA response actions are required to meet
state (and other federal) environmental law standards only to the limited
degree set out in CERCLA is also necessary to comply with the special mandates
in CERCLA to respond quickly to emergencies, and to perform Fund-balancing.
The position that on-site CERCLA response actions are not independently subject
to other federal or state environmental laws is a long-standing one, based on a
theory of implied repeal or pre-emption. See, e.g., 50 FR 47912, 47917-18
(Nov. 20, 1985); 50 FR 5862, 5865 (Feb. 12, 1985); "CERCLA Compliance With
Other Environmental Laws" Opinion Memorandum, Francis S. Blake, General
Counsel, to Lee M. Thomas, Administrator, Nov. 22, 1985.
Following are summaries of major comments and EPA's responses on specific
sections of the ARARs policy.
Name: Sections 300.5 and 300.400(g) (1) . Definition of "applicable."
Proposed rule: "Applicable requirements" means those cleanup standards,
standards of control, or other substantive environmental protection
requirements, criteria, or limitations promulgated under federal or state law
that specifically address a hazardous substance, pollutant, contaminant,
remedial action, location, or other circumstance at a CERCLA site. The
preamble to the proposed rule pointed out that there is generally little
discretion in determining whether the circumstances at a site match those
specified in a requirement (53 FR 51435-37) .
Response to comments: One commenter suggested that language used in
300.400(g)(4) of the proposed NCP which provides that "only those state
standards that are promulgated and more stringent than federal requirements may
be applicable or relevant and appropriate" be added to the definition of ARARs
found in 300.5.
In response, EPA notes that the definition it proposed already includes
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the condition that standards, whether federal or state, must be promulgated in
order to be potential ARARs. EPA accepts this comment on stringency and has
revised both '' 300.5 and 300.400(g) to specify that in order to be considered
ARARs, state requirements must be more stringent than federal requirements.
EPA notes that, in general, state regulations under federally authorized
programs are considered federal requirements.
A commenter supported the discussion of ARARs in the preamble to the
proposed NCP, but remarked that the definitions of ARARs do not adequately
reflect many of the important aspects mentioned in the preamble. EPA believes
that the definitions stated in the rule are sufficiently comprehensive and that
the information contained in the preamble to the proposed and final rules will
help the public in applying the definitions.
One commenter asked why EPA had deleted rule language that applicable
requirements are those requirements that would be legally applicable if the
response action were not undertaken pursuant to CERCLA. In working with this
definition, EPA found the previous definition confusing because it was stated
in the conditional, i.e., requirements that would apply if the action were not
under CERCLA. EPA revised the definition to explain more specifically what it
means by applicable requirements to avoid any confusion. However, the 1985
wording is still a correct statement of the applicability concept. EPA is
modifying the definition, however, to make it clear that the standards, etc. do
not have to be promulgated specifically to address CERCLA sites.
Final rule: The proposed definition of "applicable" in '' 300.5 and
300.400(g)(1) are revised as follows:
1. Consistent with the language in CERCLA section 121(d)(2), the
description of federal and state laws in ' 300.5 is revised to read:
"...requirements, criteria or limitations promulgated under federal
environmental or state environmental or facility siting law...." [Comparable
changes are made in '' 300.415(i), 300.430(e) (2) (i) (A), 300.430(e) (9) (iii) (B)
and 300.430(f)(1)(ii)(C).]
2. The following sentence is added to ' 300.5: "Only those state
standards that are identified by a state in a timely manner and that are more
stringent than federal requirements may be applicable."
3. In 300.5 and 300.400(g)(1), the word "found" is added before "at a
CERCLA site."
Name: Sections 300.5 and 300.400(g) (2) . Definition of "relevant and
appropriate."
Proposed rule: "Relevant and appropriate requirements" means those cleanup
standards, standards of control, and other substantive environmental protection
requirements, criteria, or limitations promulgated under federal or state law
that, while not "applicable" to a hazardous substance, pollutant, contaminant,
remedial action, location, or circumstance at a CERCLA site, address problems
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or situations sufficiently similar to those encountered at the CERCLA site that
their use is well suited to the particular site.
Section 300.400(g)(2) identified criteria that must be considered, where
pertinent, to determine whether a requirement addresses problems or situations
that are sufficiently similar to the circumstances of the release or remedial
action that it is relevant and appropriate. The preamble to the proposed rule
emphasized that a requirement must be both relevant and appropriate; this
determination is based on best professional judgment. Also, the preamble
stated that with respect to some statutes or regulations, only some of the
requirements may be relevant and appropriate to a particular site, while others
may not be (53 FR 51436-37).
Response to comments: 1. General. Several commenters expressed support in
general for the revised definition of relevant and appropriate requirements and
for the approach described in the proposal to identifying such requirements.
Commenters in particular supported statements that a requirement must be both
relevant, in that the problem addressed by a requirement is similar to that at
the site, and appropriate, or well-suited to the circumstances of the release
and the site, to be considered a relevant and appropriate requirement.
A few commenters recommended changes to the definition of relevant and
appropriate requirements. One commenter suggested adding to the proposed
definition that a relevant and appropriate requirement must be
start 55 FR 8743
"generally pertinent," a phrase used in the preamble of the proposed NCP in
discussing the analysis of the relevance of a requirement, while another
suggested adding "pertinent" to the circumstances of the site, expressing
concern that "generally pertinent" was overly broad. EPA believes that the
concept of "pertinence" is adequately considered as part of the evaluation of
what is relevant and appropriate (see discussion of factors for determining
relevant and appropriate requirements, below). EPA does not believe that the
suggested changes should be made in the definition itself.
Another commenter suggested revising the definition to emphasize the
jurisdictional prerequisites of a potentially relevant and appropriate
requirement, recommending that a relevant and appropriate requirement be
defined as one that, "while not applicable, sufficiently satisfies the
jurisdictional prerequisites for legal enforceability." EPA disagrees, because
the jurisdictional prerequisites, while key in the applicability determination,
are not the basis for relevance and appropriateness. Rather, the evaluation
focuses on the purpose of the requirement, the physical characteristics of the
site and the waste, and other environmentally- or technically-related factors.
Another commenter objected to the policy that some portions of a
regulation could be found relevant and appropriate, while other portions would
not be. The commenter believed that this policy would lead to confusion and
inconsistency, although the commenter agreed that the application of this
policy to RCRA closure requirements, described in the proposal, was useful.
EPA believes that this policy is appropriate and reflects its experience in
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evaluating RCRA closure requirements and other requirements as relevant and
appropriate. Finding some parts of a regulation relevant and appropriate, and
others not, allows EPA to draw on those standards that contribute to and are
suited for the remedy and the site, even though all components of a regulation
are not appropriate.
This approach has been particularly valuable as applied to RCRA closure,
where the two applicable regulations, clean closure and landfill closure,
address only the two poles of a potential continuum of closure responses. When
RCRA closure is relevant and appropriate, Superfund may use a combination of
these two regulations, known as hybrid closure, to fashion an appropriate
remedy for a site that is protective of both ground water and direct contact
(for more discussion of hybrid closure, see preamble to the proposed NCP at 53
FR 51446) .
2. Factors for determining relevant and appropriate requirements. One
commenter suggested referencing the criteria described in ' 300.400(g)(2) in
the definition. EPA believes this is not appropriate because it could lead to
confusion about the role of the criteria and result in greater emphasis on
rigidly applying the criteria than is warranted.
Based on this latter comment and others about specific criteria in the
proposal, EPA wants to clarify the role of the factors. (Note that the rule
now refers to "factors" rather than "criteria.") EPA intends that the factors
in ' 300.400(g) (2) should be considered in identifying relevant and appropriate
requirements, but does not want to imply that the requirement and site
situation must be similar with respect to each factor for a requirement to be
relevant and appropriate. At the same time, similarity on one factor alone is
not necessarily sufficient to make a requirement relevant and appropriate.
Rather, the importance of a particular factor depends on the nature of the
requirement and the site or problem being addressed and will vary from site to
site. While the factors are useful in identifying relevant and appropriate
requirements, the final decision is based on professional judgment about the
situation at the site and the requirement as a whole.
In addition, as EPA discussed in the proposal, a requirement must be both
"relevant," in that it addresses similar situations or problems, and
"appropriate," which focuses on whether the requirement is well-suited to the
particular site. Consideration of only the similarity of certain aspects of
the requirement and the site situation constitutes only half of the analysis of
whether a requirement is relevant and appropriate.
After review of comments it received, EPA has revised the language in
300.400(g)(2) because it is concerned that it was misleading. Some commenters
viewed the analysis required by this section as requiring consideration only of
the similarity of the requirement and the problems or situation at the CERCLA
site. While non-substantive for the most part, the changes to
300.400(g)(2) make clearer that a requirement and a site situation must be
compared, based on pertinent factors, to determine both the relevance and
appropriateness of the requirement. The rule also now uses the term "factors,"
rather than "criteria," a change instituted to avoid confusion with the nine
criteria for remedy selection in ' 300.430.
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One commenter suggested that factors be developed for use in evaluating
whether a requirement is "appropriate." EPA does not believe this is
necessary. Decisions about the appropriateness of a requirement are based on
site-specific judgments using the same set of factors already identified. In
the abstract it is very difficult to separate out those factors to be
considered for relevance and those to be considered for appropriateness. In
specific cases it would be possible to say, for example, that a requirement is
relevant in terms of the substances but not appropriate in terms of the
facility covered.
Several commenters questioned whether certain factors could legitimately
be considered in identifying relevant and appropriate requirements. These and
other comments on individual factors are discussed below; a brief description
of each factor as described in the proposed NCP is given after the name of the
factor.
(i): Purpose of the requirement. This factor compared the purpose of a
requirement to the specific objectives of the CERCLA action. One commenter was
concerned that the "objectives for the CERCLA action" could include the
implementability of the remedy, its cost, and even the acceptability of the
action to the community. This is not what EPA meant by "objectives." Rather,
EPA intended that this factor consider the technical, or health and
environmental purpose of the requirement compared to what the CERCLA action is
trying to achieve. For example, MCLs are promulgated to protect the quality of
drinking water; this is similar in purpose to a CERCLA action to restore ground
water aquifers to drinkable quality. To avoid confusion, EPA has simplified
the factor, which now states, "the purpose of the requirement and the purpose
of the CERCLA action."
(ii): The medium regulated by the requirement. This factor compared the
medium addressed by a requirement to the medium contaminated or affected at a
CERCLA site. No comments were received on this factor, and the final rule is
essentially unchanged from the proposal.
(iii): The substances regulated by the requirement. This factor compared
the substances addressed by a requirement to the substances found at a CERCLA
site. Several commenters argued that RCRA requirements for hazardous waste
should not be potentially relevant and appropriate to wastes "similar" but not
identical to a hazardous waste, and
start 55 FR 8744
that this criterion should be dropped. EPA disagrees and has discussed this
issue in the section of this preamble on RCRA ARARs.
(iv): The entities or interests affected or protected by the requirement.
This factor compared the entities or interests addressed by a requirement and
those affected by a CERCLA site. Two commenters expressed concern about this
factor. One commenter was concerned that it could be used to disqualify
standards from being relevant and appropriate simply because the requirement
regulated entities different from those at a CERCLA site. In contrast, another
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commenter was concerned that EPA would broadly apply requirements to entities
that were never intended to be subject to the requirement. EPA agrees that
this factor is confusing. EPA believes that the characteristics intended to be
addressed by this factor are adequately covered under other factors, such as
purpose and type of facility. Therefore, this factor has been eliminated.
(v): The actions or activities regulated by the requirement. This factor
compared the actions or activities addressed by a requirement to those
undertaken in the remedial action at a CERCLA site. No comments were received
on this factor, and the final rule is essentially unchanged from the proposal.
(vi): Any variances, waivers, or exemptions of the requirement. This
factor considered the availability of variances, waivers, or exemptions from a
requirement that might be available for the CERCLA site or action. One
commenter asked for clarification on this factor and expressed his view that
the CERCLA waiver provisions for ARARs were the only waivers allowable.
However, EPA believes that it is reasonable to consider the existence of
waivers, exemptions, and variances under other laws because generally there are
environmental or technical reasons for such provisions. These provisions are
generally incorporated into national regulations because there are specific
circumstances where compliance with a requirement may be inappropriate for
technical reasons or unnecessary to protect human health and the environment.
Again, this factor is only one that should be considered; even if a waiver
provision in a requirement matches the circumstances at the CERCLA site, there
may be other reasons why the requirement is still relevant and appropriate.
(vii): The type and size of structure or facility regulated by the
requirement. This factor compared the characteristics of the structure or
facility addressed by a requirement to that affected by or contemplated by the
remedial action. One commenter argued that regulations routinely contain cut-
offs based on type or size of the structure or facility for administrative or
enforcement convenience. EPA agrees that cut-offs based solely on
administrative reasons may not be critical in determining whether a requirement
is relevant and appropriate. However, EPA believes that it is necessary and
appropriate to consider the physical type or size of structure regulated
because requirements may be neither relevant nor appropriate to structures or
facilities that are dissimilar to those that the requirement was intended to
regulate. In many cases, this factor is a very basic one: in identifying
requirements relevant to landfills, one would turn to standards for landfills,
not for tanks.
(ix): Consideration of use or potential use of affected resources in the
requirement. This factor compared the resource use envisioned in a requirement
to the use or potential use at a CERCLA site. One commenter objected to this
factor based primarily on opposition to EPA's proposed ground water policy,
which, along with the comments EPA has received on this issue, is discussed in
the section on ground-water policy in the preamble discussion of ' 300.430.
EPA believes it is appropriate to compare the resource use considerations in a
requirement with similar considerations at a CERCLA site.
Final rule: 1. The following sentence is added to the proposed definition of
"relevant and appropriate" in ' 300.5 (see preamble discussion above on
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"applicable"): "Only those state standards that are identified by a state in a
timely manner and that are more stringent than federal requirements may be
relevant and appropriate."
2. Proposed ' 300.400(g)(2) is revised as follows:
(2) If, based upon paragraph (g)(1) of this section, it is
determined that a requirement is not applicable to a specific release,
the requirement may still be relevant and appropriate to the
circumstances of the release. In evaluating relevance and
appropriateness, the factors in paragraphs (g)(2)(i) through (viii) shall
be examined, where pertinent, to determine whether a requirement
addresses problems or situations sufficiently similar to the
circumstances of the release or remedial action contemplated, and whether
the requirement is well-suited to the site, and therefore is both
relevant and appropriate. The pertinence of each of the following
factors will depend, in part, on whether a requirement addresses a
chemical, location, or action. The following comparisons shall be made,
where pertinent, to determine relevance and appropriateness:
(i) The purpose of requirement and the purpose of the CERCLA
action;
(ii) The medium regulated or affected by the requirement and the
medium contaminated or affected at the CERCLA site;
(iii) The substances regulated by the requirement and the
substances found at the CERCLA site;
(iv) The actions or activities regulated by the requirement and the
remedial action contemplated at the CERCLA site;
(v) Any variances, waivers, or exemptions of the requirement and
their availability for the circumstances at the CERCLA site;
(vi) The type of place regulated and the type of place affected by
the release or CERCLA action;
(vii) The type and size of structure or facility regulated and the
type and size of structure or facility affected by the release or
contemplated by the CERCLA action;
(viii) Any consideration of use or potential use of affected
resources in the requirement and the use or potential use of the affected
resource at the CERCLA site.
Name: Section 300.400(g)(3). Use of other advisories, criteria or guidance
to-be-considered (TBC).
Proposed rule: The preamble to the proposed rule provided that advisories,
criteria or guidance to-be-considered (TBC) that do not meet the definition of
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ARAR may be necessary to determine what is protective or may be useful in
developing Superfund remedies (53 FR 51436). The ARARs preamble described
three types of TBCs: health effects information with a high degree of
credibility, technical information on how to perform or evaluate site
investigations or remedial actions, and policy.
For example, proposed ' 300.400(g)(3) stated that other advisories,
criteria, and guidance to be considered (TBCs) shall be identified, as
appropriate, because they may be useful in developing CERCLA remedies.
Proposed ' 300.415(j) (' 300.415(i) in the final rule) stated that other federal
and state criteria, advisories, and guidance shall, as appropriate, be
considered in formulating the removal action. Proposed ' 300.430(b) stated
that during project scoping the lead agency shall initiate a dialogue with the
support agency on potential ARARs and TBCs. Proposed
300.430(e) (2) provided that other pertinent information may be used to
develop remediation goals. Proposed ' 300.430(e) (8) provided that the lead
agency shall notify the support agency of the alternatives to be analyzed to
facilitate the identification of ARARs and TBCs. Proposed ' 300.430(f) on
selecting a remedy, however, referred to compliance with ARARs only, not TBCs.
Proposed Subpart F required that the
start 55 FR 8745
lead and support agencies timely identify ARARs and TBCs during the remedial
process.
Response to comments: Several commenters requested that the category of "TBCs"
be eliminated entirely. Commenters argued that the use of TBCs is not
authorized by CERCLA, that this category of information is too broadly defined
or open-ended, and that references to TBCs in the NCP mandate consideration of
a seemingly limitless category of information. One commenter was concerned
that by selecting a health effect assessments as a TBC candidate, the precedent
for imposition of this TBC for all sites would be set and may drive remediation
costs beyond cost-effectiveness. Some commented that using TBCs in the remedy
selection process will lead to much confusion, uncertainty, and delay. Also,
commenters suggested that the use of TBCs could lead to lengthy disputes or
litigation.
Other commenters contended that the broad definition of TBCs will give
lead agencies too much discretion when considering information and determining
cleanup levels. A commenter stated that wide discretion could produce
inconsistent selection of cleanup goals.
Several commenters argued that TBCs have been given ARAR-like status in
the NCP because the proposal requires that lead and support agencies shall
identify ARARs and TBCs during the remedial process. A commenter noted that
the proposal requires identification of TBCs even when ARARs have been
identified, adding an additional layer of regulatory activity not authorized by
CERCLA. Another commenter stated that the proposed rule does not even require
TBCs to be relevant and appropriate. One commenter stated that the proposal
requires that TBCs be identified for remedial actions but does not specify what
is to be done with them. Commenters raised due process concerns, arguing that,
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unlike ARARs, TBCs are not legally promulgated and may not have been subjected
to public or technical review and comment.
Commenters suggested that TBCs are unnecessary for establishing
contaminant levels because such levels can be determined by regulations or
during risk assessments. A commenter proposed that site-specific risk-based
remediation levels should be used. Another commenter asserted that TBCs are
appropriate for use as general guidelines, but not as requirements. The TBCs
listed in the preamble often are not subjected to thorough technical review and
are inappropriate for use as substitutes for ARARs.
If EPA retains TBCs in the NCP, commenters suggested that the category be
more specifically defined and referred to as helpful reference information
only, or used on a voluntary basis. A commenter suggested that, if TBCs are
retained, references to their identification and consideration be permissive,
not mandatory (e.g., "may, as appropriate, identify TBCs..." rather than "shall
identify TBCs..."). A commenter argued that EPA should state that remedies
selected through the use of TBCs must be cost-effective, and that TBCs may be
used only if the remedy selected falls within the acceptable risk range.
Commenters argued that if EPA uses TBCs to determine cleanup levels, PRPs
must be provided with an opportunity to challenge their use. A commenter
suggested that the preamble clarify that requirements more stringent than ARARs
can be imposed only if ARARs are not protective of human health and the
environment.
Some commenters requested clarification that requirements existing under
Indian tribe law and enforced as a matter of tribal law should be considered
ARARs rather than TBCs.
On the other hand, one commenter argued that some TBCs should be given
the same status as ARARs. The commenter explained that most states have ARARs
for determining ground and surface water cleanup levels, but promulgated
standards for soil cleanup are largely unavailable. The commenter suggested
that state policies used to determine guidance values, criteria or standards
should be given the same status as ARARs, even if not promulgated, as long as
they are used consistently within a state.
In response, EPA believes it is necessary to clarify how it intends TBCs
to be used. As a first matter, EPA agrees with commenters that TBCs should not
be required as cleanup standards in the rule because they are, by definition,
generally neither promulgated nor enforceable so they do not have the same
status under CERCLA as do ARARs. TBCs may, however, be very useful in helping
to determine what is protective at a site, or how to carry out certain actions
or requirements.
Because ARARs do not exist for every chemical or circumstance likely to
be found at a Superfund site, EPA believes it may be necessary when determining
cleanup requirements or designing a remedy to consult reliable information that
would not otherwise be considered to be a potential ARAR. For example, when
an MCLG or MCL does not exist for a particular contaminant, EPA intends that
the lead or support agency use EPA-developed toxicity information such as
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cancer potency factors and reference doses for noncarcinogenic effects when
developing preliminary remediation goals. Also, many action-specific ARARs
have broad performance criteria. The technical information on how to implement
such criteria may be contained in guidance documents only. The lead or support
agency may need to consider these guidance documents in determining how to
comply with the ARAR. Also, the lead or support agency may want to consider
policy statements contained in advisories, criteria, or guidance when selecting
or designing a remedy.
Accordingly, even though the use of TBCs is not specifically discussed in
CERCLA, EPA believes that their use is consistent with the statutory
requirements to protect human health and the environment and to comply with
ARARs. This opportunity to consider TBCs applies to both removal and remedial
actions.
EPA recognizes, as the commenters point out, that, unlike ARARs, the
identification and communication of TBCs should not be mandatory. EPA has
revised the NCP references to TBCs to make it clear that they are to be used on
an "as appropriate" basis. EPA believes that TBCs are meant to complement the
use of ARARs by EPA, states, and PRPs, not to be in competition with ARARs.
In response to other comments, even when TBCs are used, the requirements
imposed on the remedy, including that it be cost-effective, still apply.
Moreover, a PRP can comment on information derived from TBCs, including the
reliability and validity of a TBC itself, when it submits comments on the
proposed plan. PRP challenges to the use of TBCs are not precluded by EPA's
TBC policy because PRPs may still assert in their comments that, in a
particular instance, the lead agency's consideration of TBCs in determining
remediation goals and objectives is not appropriate or consistent with CERCLA's
mandates that remedies protect human health and the environment and be cost-
effective .
Further, EPA does not agree that the use of TBCs will necessarily lead to
inconsistent selection of cleanup goals. Better consistency may in fact be
achieved if all lead agencies use EPA-developed toxicity information for
contaminants for which a standard has not yet been developed. Finally, Indian
tribal laws may be potential ARARs when they meet the requirements for state
ARARs (see introductory preamble section on ARARs, above).
start 55 FR 8746
Final rule: References to TBCs will be changed in the following sections to
make it clear that their use is discretionary rather than mandatory:
300.400(g)(3), 300.415(i), 3 0 0.430(b)(9), 300.430(d)(3), 300.430(e)(8) and (9),
300.505(d) (2) (iii), 300.515(d) and (d)(1) and (2), and 300.515(h) (2) .
Name: Sections 300.400(g) (4) and (g) (5) . ARARs under state laws.
Proposed rule: Section 300.400(g) specified that only promulgated state
standards may be considered potential ARARs. A promulgated state standard must
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be legally enforceable and of general applicability. The term "legally
enforceable," according to the preamble to the proposed NCP, means that state
laws or standards which are considered potential ARARs must be issued in
accordance with state procedural requirements and contain specific enforcement
provisions or be otherwise enforceable under state law. The preamble also
explained that "of general applicability" means that potential state ARARs must
be applicable to all remedial situations described in the requirement, not just
CERCLA sites (53 FR 51437-38).
The preamble also discussed a dispute resolution process to be followed
if there is disagreement about the identification of ARARs, as well as policies
to be followed if a state insists that a remedy attain a requirement not
determined to be ARAR (see 53 FR 51437 and 51457) .
Response to comments: Commenters on this subject called for EPA to establish a
formal procedure to be followed by states to demonstrate that proposed state
ARARs are legally enforceable and of generally applicability. Commenters
suggested that states be required to provide legal citations from appropriate
sections of state laws, as well as appropriate citations to legal authority for
issuing compliance orders, obtaining injunctions, or imposing civil or criminal
penalties in the event of noncompliance. These citations, according to
commenters, would demonstrate that proposed ARARs are legally enforceable.
Commenters suggested that general applicability could be demonstrated by
requiring states to identify the chemicals, locations, and cleanup actions to
which a proposed ARAR would apply.
The proposed NCP did not prescribe a specific procedure to be used in
evaluating state standards as potential ARARs. A formal process for
demonstrating that state requirements are promulgated is not required by
CERCLA. EPA believes that the imposition of a formal procedure on states would
be a large administrative burden and could impede the cleanup process.
EPA expects, however, that states will substantiate submissions of
potential ARARs by providing basic evidence of promulgation, such as a citation
to a statute or regulation and, where pertinent, a date of enactment, effective
date, or description of scope. Because a citation is the minimum needed to
positively identify a requirement, EPA has added regulatory language requiring
both lead and support agencies to provide citations when identifying their
ARARs.
Section 300.400(g)(4) specifies that only promulgated state standards
that are more stringent than federal requirements and are identified by the
state in a timely manner may be considered potential ARARs. If a question is
raised as to whether a requirement identified by a state conforms to the
requirements for being a potential state ARAR, or is challenged on the basis
that it does not conform to the definition, the state would have the burden of
providing additional evidence to EPA to demonstrate that the requirement is of
general applicability, is legally enforceable, and meets the other
prerequisites for being a potential ARAR. If EPA does not agree that a state
standard identified by a state is an ARAR, EPA will explain the basis for this
decision.
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Furthermore, the language of CERCLA section 121(d)(2)(A) makes clear, and
program expediency necessitates, that the specific requirements that are
applicable or relevant and appropriate to a particular site be identified. It
is not sufficient to provide a general "laundry" list of statutes and
regulations that might be ARARs for a particular site. The state, and EPA if
it is the support agency, must instead provide a list of requirements with
specific citations to the section of law identified as a potential ARAR, and a
brief explanation of why that requirement is considered to be applicable or
relevant and appropriate to the site.
Other comments on this section raised objections to EPA's acceptance of
general goals as potential ARARs. One commenter questioned whether such
general goals were implementable and satisfied the requirements of a
promulgated standard, requirement, criteria, or limitation contained in CERCLA
section 121(d). Another commenter argued that attempts to interpret compliance
with a general goal will lead to confusion and delay. Several commenters
requested clarification of the status of state nondegradation goals and whether
such goals qualified as potential ARARs.
In response, it is necessary to examine the nature of a general goal in
order to determine whether it may be an ARAR. General goals that merely
express legislative intent about desired outcomes or conditions but are non-
binding are not ARARs. EPA believes, however, that general goals, such as
nondegradation laws, can be potential ARARs if they are promulgated, and
therefore legally enforceable, and if they are directive in intent. The more
specific regulations that implement a general goal are usually key in
identifying what compliance with the goal means.
For example, in the preamble to the proposed NCP, EPA cited the example
of a state antidegradation statute that prohibits the degradation of surface
water below a level of quality necessary to protect certain uses of the water
body (53 FR 51438) . If promulgated, such a requirement is clearly directive in
nature and intent. State regulations that designate uses of a given water body
and state water quality standards that establish maximum in-stream
concentrations to protect those uses define how the antidegradation law will be
implemented are, if promulgated, also potential ARARs.
Even if a state has not promulgated implementing regulations, a general
goal can be an ARAR if it meets the eligibility criteria for state ARARs.
However, EPA would have considerable latitude in determining how to comply with
the goal in the absence of implementing regulations. EPA may consider
guidelines the state has developed related to the provision, as well as state
practices in applying the goal, but such guidance or documents would be TBCs,
not ARARs.
Final rule: 1. EPA has revised ' 300.400(g)(4) as follows:
(4) Only those state standards that are promulgated, are identified by
the state in a timely manner, and are more stringent than federal
requirements may be applicable or relevant and appropriate. For purposes
of identification and notification of promulgated state standards, the
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term "promulgated" means that the standards are of general applicability
and are legally enforceable.
2. Also, language has been added to ' 300.400(g)(5) requiring that
specific requirements for a particular site be identified as ARARs, and that
citations be provided.
Name: Section 300.515(d) (1) . Timely identification of state ARARs.
Proposed rule: Section 300.515(d)(1) stated that the lead and support agencies
shall identify their respective
start 55 FR 8747
ARARs (and may identify TBCs) and communicate them to each other in a timely
manner such that sufficient time is available for the lead agency to
incorporate all potential ARARs and TBCs without inordinate delay and
duplication of effort.
Section 300.515(d)(2) provided that a SMOA may specify timeframes for
identification of ARARs and TBCs. In the absence of a SMOA, ' 300.515(h)(2)
provided that the lead and support agencies shall discuss potential ARARs and
TBCs during the scoping of the RI/FS. This section also required the support
agency to communicate in writing potential ARARs to the lead agency within 30
working days of the receipt of a request from the lead agency for potential
ARARs at two steps in the process: no later than when site characterization
data are available, and prior to the initiation of the comparative analysis.
The preamble to the proposed rule (53 FR 51438) explained that different types
of ARARs can be identified at various points in the RI/FS process: chemical-
specific and location-specific ARARs after site characterization, and action-
specific ARARs after development of alternatives.
Response to comments: Several commenters argued that even states with SMOAs
should be required to identify potential ARARs within 30 working days of the
receipt of a request from the lead agency. EPA believes, however, that it is
appropriate to allow the timeframes for identification of potential ARARs to be
negotiated as part of a SMOA, and therefore does not agree with this comment.
The purpose of the SMOA is for EPA and a state to agree on their
respective roles and responsibilities during EPA-lead and state-lead response
actions. A mutually acceptable timeframe for identifying ARARs is certainly an
important component of the decision-making process. Such discussion may also
lead to agreement on other important ARARs coordination issues such as the
appropriate EPA/state management staff level for communication of ARARs.
One commenter stated that the 30-day requirement is too short, especially
for Indian tribes who may not have well-developed systems for identifying and
compiling tribal laws. Another commenter suggested that states be given a
minimum of 2 0 working days to respond to a request for ARARs to account for
numerous levels of authority involved in the response. Based on program
experience, EPA believes a period of 30 working days is appropriate for a
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support agency to respond to a lead agency request for ARARs in the absence of
a negotiated timeframe in a SMOA. The necessity for a longer period should be
agreed upon during SMOA negotiations.
Commenters suggested that the discussion of timely identification of
ARARs be revised to allow for ARARs identified after the signing of the ROD to
be considered legally equivalent to ARARs identified prior to ROD signing.
Commenters pointed out that many potential action-specific ARARs cannot be
identified until the remedial design phase, which occurs after ROD signing.
EPA believes that remedial actions should be required to comply with
ARARs identified by the lead and support agencies before the ROD is signed and
should not be required to comply with ARARs identified after that time,
provided such ARARs could have been identified before the ROD was signed.
However, if a component of a remedy is not identified at the time of ROD
signing, requirements in effect when the component is later identified (e.g.,
during remedial design) will be used to determine ARARs. In addition, remedies
will comply with requirements promulgated after ROD signature if necessary to
maintain protectiveness (these issues are discussed in greater detail below in
the section on "Consideration of newly promulgated or modified requirements.")
Final rule: EPA is promulgating the rule as proposed except that references to
TBCs have been modified (see preamble section on TBCs).
Name: Section 300.430(f)(1)(ii)(C). Circumstances in which ARARs may be
waived.
Introduction: CERCLA reauthorization modified somewhat the 1985 NCP's five
circumstances in which a specific ARAR need not be attained. Four of the
original waivers were essentially codified, and two new waivers added
(equivalent standard of performance and inconsistent application of state
requirements). These waivers, which by statute apply to on-site remedial
activities, must be invoked for each ARAR that will not be attained; the
waivers apply only to attainment of ARARs and not to any other CERCLA statutory
requirements for remedial actions, such as protection of human health and
environment. Since today's rule also requires removal actions to comply with
ARARs to the extent practicable, these waivers are also available for removals,
as discussed in the preamble for ' 300.415 (i) .
Proposed rule: The proposed NCP revisions essentially incorporated the
statutory language of the waivers in the rule without amplification or
significant modification in proposed ' 300.430(f) (3) (iv) (renumbered as
final ' 300.430(f)(1)(ii)(C)). The preamble to the proposal did, however,
discuss criteria and circumstances under which the waivers might be invoked (53
FR 51438) .
Each waiver is discussed below in terms of the proposed criteria,
comments on the criteria, and EPA's response to comments. Unless explicitly
stated otherwise, the criteria under each waiver may be presumed to remain the
same as described in the preamble to the proposed rule.
Response to comments: Two general comments were made about use of waivers.
One commenter suggested that the probability of exposure be allowed as grounds
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for a waiver; for example, the low probability of exposure at a remote site
would allow an ARAR such as for drinking water levels in groundwater to be
waived. EPA does not believe that there is authorization to use exposure
probability as grounds for a waiver. Exposure probability may suggest what
standards have to be attained (as with groundwater that may be used for
drinking), but cannot exempt a CERCLA response from what would otherwise be
ARAR.
Another commenter suggested that waivers be interpreted broadly and used
more frequently to expedite response and conserve the Fund. The commenter gave
as an example waiving MCLs for Class II groundwater that is not likely to be
used for drinking water. EPA acknowledges that waivers of ARARs may be used
more frequently in the future as more experience is gained about the
practicability of remedies, the nature of state requirements, etc. However,
EPA may invoke waivers only when appropriate under the terms of the statute,
and not simply when it might be desirable to expedite an action. EPA also
notes that a specific waiver is available to help conserve the Fund.
Final rule: EPA is promulgating the rule as proposed.
Name: Section 300.430(f) (1) (ii) (C) (1^) . Interim measures.
Proposed rule: This waiver is intended for interim measures which by their
temporary nature do not attain all ARARs. The criteria proposed were that an
interim measure for which this waiver is invoked should be followed within a
reasonable time by complete measures that attain ARARs, and that the interim
measure should not exacerbate site problems nor interfere with the final remedy
(53 FR 51438-39) .
start 55 FR 8748
Response to comments: One commenter stated that EPA should define the term,
"reasonable time," to put a limit on the amount of time between an interim
measure and completion. The commenter was concerned that the waiver could be
used to delay completion of a remedial action unless a time limit, such as 3
years, is imposed. EPA believes that putting a specific time limit as a pre-
condition for invoking this waiver is impractical because it is difficult to
predict exactly when complete measures can be undertaken, given changes in
funding, priorities, and other factors.
Another commenter advised that this waiver should not be used to impose
needless, duplicative costs in remediation by requiring unnecessary interim
steps. EPA agrees that interim actions should be consistent with a final
remedy to the extent the latter can be anticipated. This point is addressed in
part by the criterion that the interim measure should not interfere with the
final remedy.
Final rule: EPA is promulgating the rule as proposed.
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Name: Section 300.430(f)(1)(ii)(C)(2). Greater risk to health and the
environment.
Proposed rule: This waiver is intended for ARARs whose implementation will
cause greater risk to human health and the environment than non-compliance.
The criteria proposed for this waiver included magnitude, duration, and
reversibility of adverse impacts due to compliance with an ARAR compared to a
remedy not complying with that ARAR (53 FR 51439) .
Response to comments: Commenters did not specifically disagree with the
criteria. One commenter advised caution in invoking this waiver because of the
uncertainties in accurately assessing risks and the delays that could ensue
from disagreements about these risks. The commenter also said that full public
input should be sought before invoking this waiver. In response, EPA notes
that public input is required through the proposed plan, which must describe
use of a waiver. EPA agrees that risk assessment has uncertainties, but
believes that careful assessments that reveal greater risks from compliance
with ARARs may be grounds for using this waiver.
Another commenter objected to the preamble discussion for suggesting that
the alternative to which compliance with an ARAR is compared is limited to a
"no-action" alternative. While the examples provided perhaps suggest that the
alternative might have been no action (as with PCB contamination), EPA
certainly does not intend that the alternative to which a potentially high risk
remedy is compared must be the no-action alternative. As with the example of
excavation, there may be other active measures such as capping which can be
taken if the ARAR-compliant remedy poses unacceptably high risks.
Final rule: EPA is promulgating the rule as proposed.
Name: Section 300.430(f)(1)(ii)(C)(3). Technical impracticability.
Proposed rule: This waiver is intended when compliance with an ARAR is not
technically practicable from an engineering perspective. The criteria proposed
for this waiver included engineering feasibility and reliability, with cost
generally not a major factor unless compliance would be inordinately costly.
Both standard and innovative technologies should be considered before invoking
this waiver (53 FR 51439) .
Response to comments: Several commenters addressed the issue of cost. Some
asserted that cost has no role in determining technical practicability, and
should be dropped from consideration. Others stated that cost should play a
more explicit role by being one of the criteria (along with feasibility and
reliability). EPA believes that cost should generally play a subordinate role
in determining practicability from an engineering perspective. Engineering
practice is in reality ultimately limited by costs, hence cost may legitimately
be considered in determining what is ultimately practicable. On the other
hand, if cost were a key criterion in determining the practicability of an
ARAR, ARARs would likely be subjected to a cost-benefit analysis rather than a
test of true practicability.
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One commenter argued that the waiver should be invoked even when an
innovative technology is available that may achieve an ARAR unless EPA presents
evidence that the technology will be reliable and effective. In the proposal
EPA stated that the technical impracticability waiver should not be used where
either existing or innovative technologies can reliably, logically, and
feasibly attain the ARAR. Innovative technologies are encouraged by the
statute and, in accordance with criteria presented elsewhere in the rule,
should be employed to attain ARARs where appropriate; the burden of presenting
information on such technologies would be on the PRP, not EPA.
One commenter suggested that this waiver should be granted for any
carcinogen with an MCLG of zero. The role of MCLGs and MCLs is discussed below
in today's preamble. EPA notes that because elimination of contamination to a
level of zero is infeasible, this waiver would probably have to be invoked
where an ARAR is zero.
Final rule: EPA is promulgating the rule as proposed.
Name: Section 300.430(f) (1) (ii) (C) (4^) . Equivalent standard of performance.
Proposed rule: This waiver is intended where the standard of performance of a
requirement can be equaled or exceeded through another method. The criteria
proposed included degree of protection, level of performance, reliability into
the future, and time required for results (53 FR 51439-40) .
Response to comments: Several commenters maintained that a broader
interpretation of the waiver should be used than that proposed by EPA.
Specifically, they argued for a case-by-case analysis of concentrations at
realistic points of exposure as the best measure of equivalent performance. In
other words, they would use an evaluation of exposure risk as the measure of
equivalent performance, allowing an entirely different remedial approach than
that specified in a requirement as long as the final risk level is the same.
EPA disagrees fundamentally with this approach, which EPA believes is far
broader than what Congress intended. As another commenter noted, the purpose
of the waiver is to allow alternative technologies that provide a degree of
protection as great or greater as the specified technology. The language from
the Conference Report on SARA makes clear the narrower purpose of this waiver
for the use of alternative but equivalent technologies; comparison based on
risk is only permitted where the original standard is risk-based:
This [waiver] allows flexibility in the choice of technology but
does not allow any lesser standard or any other basis (such as a
risk-based calculation) for determining the required level of
control. However, an alternative standard may be risk-based if the
original standard was risk-based.
H.R. Rep. No. 962, 99th Cong., 2d Sess. (1986)("Conference Report on SARA") at
p. 249. Another commenter believed that EPA's criteria are unnecessarily
restrictive, in that these criteria should be balanced in evaluating an
alternative rather than required to be equaled or exceeded. EPA believes that
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the first three criteria, i.e., degree of protection, level of performance, and
future reliability, should at least be equaled for an alternative to be
considered equivalent. While it is possible that
start 55 FR 8749
there may be redundancy among the three, a lesser level in any of these
criteria would compromise equivalency with the original standard.
Regarding the fourth criterion, EPA proposed that the time required to
achieve results using the alternative remedy should not be significantly more
than that required under the waived ARAR. Several commenters objected to this
criterion, arguing that it could preclude less expensive technologies or ones
that provide greater protection or reliability. They were also troubled by the
vagueness of the standard of "significantly more."
EPA appreciates the concerns raised by these commenters regarding the
role of time in evaluating an alternative for this waiver. The standard
proposed was not specific precisely in order to allow cases where alternative
methods may provide great benefits even though requiring longer time for
implementation, as with, for example, the use of bioremediation instead of
incineration. While EPA still believes that the time required to implement an
alternative should be considered in using this waiver, with a bias toward
quicker remedies, EPA recognizes the validity of commenters' claims that the
duration should be balanced against other beneficial factors and should not be
a necessary condition for equivalence.
A final commenter expressed concern that this waiver as interpreted by
EPA would actually require the alternative to exceed the level of
protectiveness provided by the ARAR. EPA does not believe that the criteria
that have been proposed for this waiver in any way require that the alternative
be more protective than the ARAR, rather, that it be at least as protective as
the ARAR.
Final rule: EPA is promulgating the rule as proposed.
Name: Section 300.430(f)(1)(ii)(C)(5). Inconsistent application of state
requirements.
Proposed rule: This waiver is intended to prevent application to Superfund
sites of state requirements that have not been consistently applied elsewhere
in a state. A standard is presumed to have been consistently applied unless
there is evidence to the contrary. The preamble to the proposed NCP explained
that consistency of application may be demonstrated by the similarity of sites
or response circumstances, the proportion of noncompliance cases, reasons for
noncompliance, and intentions to apply future requirements. Intent can be
demonstrated by policy statements, legislative history, site remedial planning
documents, or state responses to federal-lead sites (53 FR 51440) .
Response to comments: Several commenters disagreed with EPA's position that
potential state ARARs will be considered to have been consistently applied in
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the past unless evidence exists to the contrary. Commenters also disagreed
with EPA's position on state intentions to consistently apply new ARARs.
Commenters argued that the statutory language and the legislative history of
CERCLA do not contain any basis for EPA's position that potential state ARARs
will be presumed to have been consistently applied unless evidence exists to
the contrary.
Commenters suggested that EPA develop a formal procedure to be followed
by states in demonstrating the consistency of past and future application of
standards. One commenter argued that states should bear the burden of proof
and should be required to document past applications of potential ARARs.
For those ARARs with established implementation records, commenters
favored a policy by which consistent application would be based on documented
evidence supplied by the states. One commenter suggested that states be
required to provide a list of enforcement actions as evidence in demonstrating
consistent application. Another commenter favored the publication of all
legally applicable state ARARs in a publicly available document, with
appropriate review and comment periods.
For new ARARs without sufficient records of application, one commenter
suggested that states should be required to develop an implementation plan for
the new ARAR and demonstrate that sufficient funds exist to carry out the plan.
Additionally, this commenter proposed that PRPs should have the opportunity to
forego compliance with an ARAR if a state does not implement the ARAR in
accordance with announced intentions. Another commenter suggested that state
intentions to consistently implement an ARAR be recorded in an official record.
In response, the proposed NCP did not contain a specific procedure to be
followed by states in demonstrating consistent application of state standards.
Rather, the preamble describes what information can be submitted for EPA
review when the consistency of application of a particular requirement is
questioned.
A standard is presumed to have been consistently applied unless EPA
questions that conclusion or requests additional information to substantiate
the conclusion. EPA continues to believe that it is proper to presume that a
state has consistently applied (or in the case of a newly adopted standard
"intends to consistently apply") a standard unless there is reason to believe
otherwise. CERCLA section 121(f)(4) is written such that this waiver may be
invoked when the President finds that a state requirement is inconsistently
applied. CERCLA does not require states to demonstrate consistent application
in order for a requirement to be considered an ARAR. Also, imposing an up-
front formal procedure on states for demonstrating consistent application would
impose a heavy administrative burden. A special implementation plan for newly-
promulgated requirements is likewise not required by statute and would be
unnecessarily burdensome on states. States have the option of providing
evidence of consistent application if EPA is considering waiving a standard.
In such a case, the type of evidentiary showings suggested by commenters may be
appropriate.
Final rule: EPA is promulgating the rule as proposed.
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Name: Section 300.430(f) (1) (ii) (C) (6^) . Fund-balancing.
Proposed rule: The proposed section is based on CERCLA section 121(d)(4)(F),
which states that this waiver may be used for Fund-financed actions under
CERCLA section 104 only. The proposal stated that an alternative may be
selected that does not attain all ARARs when EPA determines that the ARAR-
compliant alternative will not provide a balance between the need for
protection of human health and the environment at the site and the availability
of Fund monies to respond to other sites that may present a threat to human
health and the environment. Further conditions for using this waiver were
explained in the preamble to the proposed NCP (53 FR 51440) .
The preamble solicited comment on EPA's intention to establish a dollar
threshold and specific criteria for routinely invoking this waiver. The
threshold would be based on an amount significantly higher than the average
cost of remediating sites with problems similar to those at the site under
consideration, e.g., the cost of addressing large municipal landfills.
Response to comments: Many of the comments received on establishing a dollar
threshold were opposed to it, generally because such a threshold would be
arbitrary. One commenter argued that a site cleanup should not be compromised
because of a possible future funding shortage elsewhere. Other commenters
noted that the
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amount of money in the Fund is in a steady state of flux and that a fixed
dollar threshold would not recognize the dynamic nature of the Superfund
program (e.g., PRP-financed responses may have an impact on the Fund.)
Establishing an arbitrary dollar threshold is not the proper methodology for
this waiver, asserted one commenter. Rather, if an alternative would not
attain an ARAR, yet would still fall within the acceptable risk range, then it
would warrant selection. Another commenter disagreed with a threshold amount
and advised EPA to focus on minimizing Fund-financed cleanups rather than
raising the specter of a lower nationwide level of cleanup effort because the
Fund may be depleted.
Some commenters supported establishing a dollar threshold. One commenter
suggested a threshold of 15 percent over the average cost of remediation at
similar types of Superfund sites. Another stated that a threshold addresses
the realities of a limited pot of money for the national remediation effort.
This commenter recommended calculating the average remedial cost for specific
types of sites over 5 years. Such information would be updated periodically to
account for inflation and increased costs of treatment and new technologies.
Thresholds could be set at one standard deviation above the mean. Another
commenter appeared to support the threshold but stated that Congress intended
that this waiver be used only in extraordinary circumstances where the Fund
resources may be seriously depleted. This commenter argued that exceeding a
dollar threshold should result in only an examination of the waiver, not a
presumption to invoke the waiver.
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In response, the reason for having a Fund-balancing waiver is to ensure
that EPA's ability to carry out a comprehensive national response program is
not compromised by the expenditure of the Fund at a single site. EPA has
decided to establish a policy to routinely consider -- not necessarily invoke -
- the Fund-balancing waiver at a threshold point. EPA will use this threshold
as a guideline, rather than a requirement, because of the dynamic nature of
both the program and of the amount of funds annually appropriated to the
program by Congress. EPA believes that it is appropriate to consider the Fund-
balancing waiver for unusual, very costly cases. EPA believes that when a
single action would be four times the cost of an average operable unit, it
could compromise EPA's ability to conduct actions at other sites. Therefore,
EPA has decided that the lead agency should routinely consider the Fund-
balancing waiver when the cost of a remedy attaining an ARAR is four times the
current average cost of operable unit. EPA also reserves the right to invoke
the waiver in specific situations when the cost of the remedy is expected to
fall below the threshold and EPA determines that the single site expenditure
would place a disproportionate burden on the Fund.
In response to comments on use of this waiver by federal agencies other
than EPA and by PRPs, EPA notes that CERCLA section 121(d)(4)(F) clearly
restricts use of this waiver to response actions conducted under CERCLA section
104 using the Fund, i.e., financed by the Hazardous Substance Superfund.
Therefore, this waiver is unavailable for other federal agencies.
Final rule: EPA is promulgating the rule as proposed.
Name: Section 300.430(e)(2)(i)(B). Use of maximum contaminant level goals for
ground-water cleanups.
Proposed rule: CERCLA section 121(d) states that a remedial action will attain
a level or standard of control established under the Safe Drinking Water Act
(SDWA), among other statutes, where such level or control is applicable or
relevant and appropriate to any hazardous substance, pollutant or contaminant
that will remain on-site. The enforceable standards under the SDWA are maximum
contaminant levels (MCLs) which represent the maximum permissible level of a
contaminant which is delivered to any user of a public water system. Section
121(d) also states that remedial actions shall attain maximum contaminant level
goals (MCLGs) where such goals are relevant and appropriate to the
circumstances of the release.
Proposed ' 300.430(e)(2)(i)(B) reflected EPA's determination that MCLs
generally shall be considered relevant and appropriate standards when
determining acceptable exposure for ground water and surface water that is a
current or potential source of drinking water. This section also stated that
in cases involving multiple contaminants or pathways where the risk is in
excess of 10~4, MCLGs may be considered when determining acceptable exposures.
An MCLG is a health-based goal set at a level at which no adverse health
effects may arise, with a margin of safety. An MCL is required to be set as
close as feasible to its respective MCLG, taking into consideration the best
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technology, treatment techniques, and other factors (including cost). MCLs for
noncarcinogens are nearly always set at MCLGs. Many MCLGs for carcinogens,
however, are set at zero. MCLs for carcinogens are set above zero.
In the preamble to the proposed rule (53 FR 51441-42), EPA explained that
MCLs rather than MCLGs generally are relevant and appropriate to the cleanup
of ground water that is or may be used for drinking because MCLs are the
enforceable standards under the Safe Drinking Water Act (SDWA), the MCLs for
carcinogens are within EPA's acceptable risk range, and MCLs are protective.
MCLs represent the level of water quality that EPA believes is acceptable for
over 200 million Americans to consume every day from public drinking water
supplies. EPA decided that Superfund cleanup of drinking water should use the
same standards as EPA's drinking water program.
Since MCLs are usually only legally applicable under the SDWA to the
quality of drinking water at the tap, there will be few instances in which MCLs
are applicable to cleanup of ground water at a Superfund site. For this
reason, MCLs are generally considered "relevant and appropriate" to ground
water that is or may be used for drinking. The preamble to the proposed rule
further explained that MCLGs may be relevant and appropriate where the risk
posed by multiple contaminants or pathways was in excess of 10 4 (53 FR 51441).
Response to comments: The majority of commenters supported the proposed NCP's
policy on the use of MCLs rather than MCLGs as generally relevant and
appropriate standards. Many of these commenters argued that MCLs should
generally be the cleanup standard because they are protective of human health
and the environment, are generally set at practical limits of detection, fall
within EPA's acceptable risk range, and are the enforceable standards under the
Safe Drinking Water Act and other environmental programs, e.g., MCLs are used
as ground-water protection standards under RCRA.
Some agreed with EPA that it makes little sense to require MCLGs because
the result would be that the water around Superfund sites would be cleaner than
the water used for drinking. Others argued that requiring MCLGs would
undermine SDWA's use of MCLs as enforceable drinking water standards.
Commenters argued that MCLGs for ground-water cleanups equal to zero are
unattainable and not detectable, primarily because no adequate technologies are
presently available. A commenter further stated
start 55 FR 8751
that the purpose of MCLGs is not to establish cleanup levels and that MCLGs
have no relationship to the circumstances at a Superfund site. Another
commenter argued that cleanup standards other than MCLs are often impractical
to measure.
Commenters also observed that cleanup levels determined by MCLGs may not
be attainable. One commenter argued that limitations in cleanup techniques and
analytical methodology would make it impossible to achieve MCLGs, waivers would
have to be used, and remediation schemes would become needlessly complex and
prolonged. Some commenters agreed with EPA's statement that CERCLA does not
require EPA to eliminate all risks.
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One commenter noted that MCLs for carcinogens are all within EPA's
acceptable risk range. A commenter further stated that the use of MCLGs is
inconsistent with the requirement that additive risks not exceed 10 4. This
commenter argued that because MCLGs represent zero risk, the use of MCLGs
undermines EPA's risk assessment policy.
Other comments appeared to generally support the use of MCLs but advised
that MCLs should not be used in certain situations. A commenter cautioned that
EPA must assure that technical problems with measuring compliance are resolved.
Also, this commenter argued that MCLs must be applied with flexibility because
they may be overly conservative. Another commenter stated that MCLs should not
be used where aquifers are not likely to be employed as drinking water sources
or where MCLs may be technically unachievable.
Other commenters generally supported EPA's proposal but disagreed that
MCLGs should ever be used for multiple contaminant or pathway situations posing
risk in excess of 10~4. Another commenter contended that MCLs provide adequate
protection in most cases of potential multiple exposure.
Several of the comments opposed to the proposal argued that the MCL
policy is in direct conflict with the statutory language. These commenters
contend that MCLs are not sufficiently protective of human health because cost
and technical feasibility factors are considered when developing MCLs and that
cost considerations cannot be considered until health standards are determined.
Some argued that cleanup levels should be based on either MCLGs or health-
based standards.
One commenter argued that it is inappropriate for Superfund to use MCLs
because the technologies available for Superfund cleanups are different than
the technologies used to treat water at public treatment works. The commenter
stated that EPA should not confine Superfund's cleanup to financial and
technological realities experienced by municipal water systems and that
Congressional intent was that Superfund cleanup standards must be more
stringent than standards that apply to public drinking water systems.
A commenter argued that CERCLA requires EPA to establish tough upfront
cleanup standards (i.e., MCLGs) and that EPA should be required to explain to a
community when it needs to waive such requirements on a specific site. It is
concerned that, behind closed doors, cleanup remedies that are more protective
of public health will be eliminated on the basis of cost or other problematic
criteria.
EPA has carefully considered the lengthy and disparate comments on the
use of MCLs and MCLGs as potential relevant and appropriate requirements for
the cleanup of ground and surface water at CERCLA sites. As a threshold
matter, EPA disagrees with those commenters that assert that MCLGs can never be
relevant and appropriate. Congress directed EPA in CERCLA section 121(d)(2)(A)
to attain MCLGs "where relevant and appropriate under the circumstances of the
release," suggesting that MCLGs may be relevant and appropriate in some but not
necessarily all situations. The proposed rule itself noted that there may be
situations in which MCLGs -- rather than MCLs -- are the relevant and
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appropriate standard, such as where multiple contaminants or pathways of
exposure heighten risk to human health (e.g., risk greater than 10 4) . 53 FR
at 51441. However, EPA took the position in the proposed rule that
consideration of MCLGs as potential relevant and appropriate requirements
should be limited to those high-risk situations just mentioned. Now, based on
the public comments and a re-examination of the issue, EPA has modified its
position on when MCLGs are to be considered potential relevant and appropriate
requirements.
EPA's opinion is that where an MCLG establishes a contaminant level above
zero, it is appropriate and consistent with the language in CERCLA section
121(d)(2)(A) to consider that MCLG as a potential relevant and appropriate
requirement, with determinations to be made on a site-specific basis as to the
relevance and appropriateness of meeting that level under the circumstances of
the release. When an MCLG is determined not to be relevant and appropriate to
the circumstances of the release, the corresponding MCL will be considered a
potential relevant and appropriate requirement and will be evaluated under the
circumstances of the release. Site-specific assessments of whether a
requirement is relevant and appropriate will be made based on the factors set
out in ' 300.400(g)(2).
Further, EPA believes, consistent with a number of comments, that where
an MCLG is equal to zero level of contaminants (as is the case for
carcinogens), that MCLG is not "appropriate" for the cleanup of ground or
surface water at CERCLA sites. In such cases, the corresponding MCL will be
considered as a potential relevant and appropriate requirement, and attained
where determined to be relevant and appropriate under the circumstances of the
release. This approach best harmonizes the multiple directions of the statute
to consider MCLGs, MCLs, and practicability.
As noted in the final rule, EPA believes it may also be appropriate to
consider exposure criteria and other factors set out in ' 300.430(e)(2)(i)(A)
of the rule in cases involving multiple contaminants or pathways that present
risks in excess of 10 4.
Statutory waivers may also be available on a site-specific basis. CERCLA
section 121(d)(4).
For noncarcinogens, MCLs generally are set equal to MCLGs. EPA establishes
all MCLs, i.e., for carcinogens and noncarcinogens, at levels that protect
human health.
Compare CERCLA section 121(d)(2)(A) ("remedial action shall require a level
or standard of control which at least attains maximum contaminant level goals
established under the Safe Drinking Water Act ... where such goals or criteria
are relevant and appropriate...."); section 121(d)(2)(A)(i) (remedial action
shall require a level or standard of control which at least attains "any
standard, requirement... under any Federal environmental law, including ...
the Safe Drinking Water Act [e.g., MCLs] ... [that] is legally applicable to
the ... contaminant concerned or is relevant and appropriate ...."); and
section 121(b) ("The President shall select a remedial action that ...
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By requiring CERCLA remedies to attain MCLGs only when "relevant and
appropriate," section 121(d)(2) of the statute affords EPA considerable
discretion. It is EPA's opinion that MCLGs of zero, while reasonable as non-
enforceable goals under the SDWA, are not appropriate as cleanup standards
under the terms of CERCLA for several reasons. First, the purpose of MCLGs
under the SDWA is much different from the purpose of ARARs under CERCLA section
121. Examining the purpose of a requirement is one of the criteria used in the
NCP to determine whether a requirement is relevant and
start 55 FR 8752
appropriate to the circumstances of a release. NCP ' 300.400(g)(2)(i).
The purpose of MCLGs under the SDWA is to set goals for both carcinogens
and noncarcinogens, at a level at which "no adverse or anticipated effects on
the health of persons occur and which allow an adequate margin of safety."
SDWA section 1412(b)(1)(B). See also House Report No. 1185, 93rd Cong., 2d
Sess. at 20 (July 10, 1974) . The MCLGs are the basis from which legally
enforceable MCL standards are set; MCLs are designed to come as close as
feasible to the respective MCLG, taking into account the best technology,
treatment techniques and other factors (including cost). SDWA section
1412(b)(3); 50 FR 46881 (Nov. 13, 1985). As explained in the House debate on
the SDWA:
The Administrator will have to make two judgments. He will have to
determine what the health goal -- recommended maximum contaminant level
[now known as the MCLG] -- should be. ^f there is no known safe
threshold, the recommended level should be set at zero. But this is not
a requirement which is enforceable against public water systems.
120 Cong. Rec. 36366-36403 (statement of Cong. Rogers) (daily ed., Nov. 19,
1974), reprinted in Senate Committee on Environment and Public Works, 97th
Cong., 2d Sess., A Legislative History of the Safe Drinking Water Act at 652
(Comm. Print 1982)(emphasis added).
EPA establishes MCLGs under SDWA at threshold levels -- with a margin of
safety -- for non-carcinogens, and at a zero level for carcinogens where the
threshold level is not known. Congress must be assumed to have been aware of
this distinction when it required CERCLA remedies to use only those MCLG goals
that are relevant and appropriate in setting enforceable standards to be
attained at a site.
utilizes permanent solutions and alternative treatment technologies or
resource recovery technologies to the maximum extent practicable.")
Similarly, the statute cites the "purpose for which criteria were developed"
as a principal factor to consider in deciding whether water quality criteria
under the CWA are "relevant and appropriate under the circumstances of the
release." See CERCLA section 121(d)(2)(B)(i).
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EPA also believes that MCLGs of zero are not appropriate for determining
the actual cleanup levels to be attained under CERCLA because CERCLA does not
require the complete elimination of risk or of all known or anticipated
effects; i.e., remedies under CERCLA are not required to entirely eliminate
potential exposure to carcinogens. CERCLA section 121 does direct, among other
requirements, that remedies protect human health and the environment, be
permanent to the maximum extent practicable and be cost-effective. Remedies at
Superfund sites comply with these statutory mandates when the amount of
exposure is reduced so that the risk posed by contaminants is very small, i.e.,
at an acceptable level. EPA's risk range of 10~4 to 10~6 represents EPA's
opinion on what are generally acceptable levels. A contaminant level of zero,
and the corresponding "no risk" level, are not consistent with the cleanup
objectives of the CERCLA program. (Note that EPA has determined that MCLs for
carcinogens protect human health because they generally fall within this
acceptable risk range. See 54 FR 22093-94 (May 22, 1989); 52 FR 25700-01 (July
8, 1987) . )
Another reason that EPA believes that an MCLG of zero is not
"appropriate" is that it is impossible to detect whether "true" zero has
actually been attained. EPA discussed the scientific difficulty in
demonstrating zero contaminant levels during the 1985 rulemaking on MCLGs:
EPA has emphasized in the rulemaking that zero is not a measurable level
in scientific terms and will continue to emphasize that point to the
public. That zero is not measurable or attainable is irrelevant to the
purpose of setting RMCLs which is to set a health goal to prevent adverse
effects with a margin of safety.
50 FR at 46884, 46896 (Nov. 13, 1985) (emphasis added). EPA's experience and
judgment is that determining that contaminant levels have been reduced to zero
cannot be achieved in practice, and none of the many public comments on this
issue provided evidence to the contrary. ARARs must be measurable and
attainable since their purpose is to set a standard that an actual remedy will
attain.
EPA's interpretation gives effect to another important mandate in CERCLA
section 121. In addition to requiring EPA to attain MCLGs where relevant and
appropriate, the statute directs EPA to require levels that attain the
"requirements" under federal environmental laws, including the SDWA, where
legally applicable or relevant and appropriate (section 121(d)(2)(A)). MCLs
are the legally enforceable requirements under the SDWA. Thus, section 121
appears to require EPA to attain both MCLs and MCLGs, where applicable or
See also 49 FR 24347 (June 12, 1984) (emphasis added): "Due to limitations
in analytical techniques, it will always be impossible to say with certainly
that the substance is not present. In theory, RMCLs at zero will always be
unachievable (or at least not demonstrable). While zero could be the
theoretical goal for carcinogens in drinking water, in practice, a goal of
achieving the analytical detection limits for specific carcinogens would have
to be followed."
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relevant and appropriate, at CERCLA sites. EPA's policy gives effect to these
two provisions by identifying the conditions under which either the MCLG or the
MCL is the potential relevant and appropriate requirement.
EPA's determination that MCLGs equal to zero are not relevant and
appropriate requirements is also consistent with CERCLA section 121(d)(4)(C),
which establishes technical impracticability as a basis for waiving a
requirement that would otherwise be applicable or relevant and appropriate.
This waiver provision indicates that Congress did not intend standards to be
attained if they are impracticable to meet under the circumstances of a
specific release. EPA has determined that MCLGs equal to zero are not relevant
and appropriate because whether that level has been attained cannot be verified
under the circumstances of any release.
Alternatively, EPA could have assumed that all MCLGs (including those of
zero) are relevant and appropriate requirements, and then used the waiver
provision in CERCLA section 121(d)(4)(C) at every site where the issue arises.
However, this would result in needlessly complex and prolonged procedures, as
one of the other commenters noted. Moreover, EPA believes the better approach
is to resolve this issue as a matter of interpretation in its national
rulemaking under CERCLA.
Other issues were raised by commenters, such as determining where in the
ground water MCLs should be attained, determining which ground waters are or
may be used for drinking, setting cleanup standards for several chemicals in an
aquifer, and determining reasonable timeframes for ground water cleanups.
These issues are addressed elsewhere in today's preamble.
Final rule: For the reasons discussed above, EPA is amending
300.430(e)(2)(i)(B) through (D) of the final rule to provide as follows:
(B) Maximum contaminant levels goals (MCLGs), established under the
Safe Drinking Water Act, that are set at levels above zero, shall be
attained by remedial actions for ground or surface waters that are
current or potential sources of drinking water, where the MCLGs are
relevant and appropriate under the circumstances of the release based on
the factors in ' 300.400(g)(2). If an MCLG is determined not to be
relevant and appropriate, the corresponding maximum contaminant level
(MCL) shall be attained
start 55 FR 8753
where relevant and appropriate to the circumstances of the release.
(C) Where the MCLG for a contaminant has been set at a level of
Note, however, that the site-specific waivers in CERCLA section 121(d)(4)
may still be appropriately considered under this rule in cases where a
standard (such as an MCL or an MCLG) is identified as a relevant or
appropriate requirement.
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zero, the MCL promulgated for that contaminant under the Safe Drinking
Water Act shall be attained by remedial actions for ground or surface
waters that are current or potential sources of drinking water, where the
MCL is relevant and appropriate under the circumstances of the release
based on the factors in ' 300.400(g)(2).
(D) In cases involving multiple contaminants or pathways where
attainment of chemical-specific ARARs will result in cumulative risk in
excess of 10~4, criteria in paragraph (e)(2)(i)(A) of this section may
also be considered when determining the cleanup level to be attained.
Name: Section 300.430(f) (5) (iii) (A) . Location of point of compliance for
ground-water cleanup standards.
Proposed rule: Section 300.430(e)(2)(i)(B) specified the standards that shall
generally be considered relevant and appropriate when determining acceptable
exposure levels for ground water or surface water that is a current or
potential source of drinking water. Proposed
300.430(f) (4) (iii) (A) (renumbered as final ' 300.430(f) (5) (iii) (A)) states that
performance shall be measured at appropriate locations in the ground water,
etc. The preamble to the proposed rule explained that for ground water,
remediation levels should generally be attained throughout the contaminated
plume, or at and beyond the edge of the waste management area when waste is
left in place (53 FR 51426). (The preamble also discussed points of compliance
for other media (Id.); see today's preamble to ' 300.430(e), "Feasibility
study, 1. Remedial action objectives and remediation goals," for discussion of
these other points of compliance.)
Response to comments: Several commenters essentially supported the proposed
policy regarding point of compliance, but emphasized that the ground-water
classification scheme should not be used to delay cleanup or to "write-off"
aquifers.
Several other commenters opposed the proposal that cleanup standards,
specifically MCLs or MCLGs, should be met throughout the ground water. Most
proposed alternatively that the standards be met only at the tap or other
realistic point of use, based on a site-specific exposure or risk assessment,
and that higher levels be allowed in the ground water, especially immediately
downgradient from a waste management area, to take into account natural
attenuation. Some proposed that compliance should be at the facility property
boundary, or beyond if exposure is precluded under CERCLA alternate
concentration limits. One commenter argued that point of compliance is a site-
specific, case-by-case determination that should not be specified in the
preamble, while another sought the same level of flexibility for ground-water
contamination cleanup as there is for contaminant source areas.
These commenters felt that if compliance is not linked to actual or
realistic future exposure, the resulting cleanups would be unnecessary or not
cost-effective. They also maintained that using actual or likely points of
exposure would be more appropriate to ensure that actual drinking water meets
standards. Also, they argued that the proposed point of compliance violates
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the intent of "relevant and appropriate" in that it is inconsistent with and
more stringent than the compliance point under SDWA itself, which is at the
tap.
EPA disagrees fundamentally with these commenters. MCLs, which are
enforceable drinking water standards, and MCLGs above zero, are indeed relevant
in considering cleanup levels for water that is or may be used for drinking.
Although SDWA does not focus on general ground-water contamination, EPA
believes that the MCL standards and non-zero MCLGs promulgated under SDWA are
potentially relevant and appropriate to ground-water contamination. CERCLA
sets out a mandate for remedies that are protective of use of ground water by
private or public users. For example, section 104(c) (6) reflects Congress's
expectation that ground water should be restored to protective levels. If
ground water can be used for drinking water, CERCLA remedies should, where
practicable, restore the ground water to such levels. Such restoration may be
achieved by attaining MCLs or non-zero MCLGs in the ground water itself,
excluding the area underneath any waste left in place. Thus, these standards
and goals may appropriately be used as cleanup levels in the ground water as
well as for the delivery of drinking water by public water systems.
Furthermore, as stated in the preamble to the proposed rule, "EPA's
policy is to attain ARARs...so as to ensure protection at all points of
potential exposure" (53 FR 51440) . Under the approach proposed by many of
these commenters -- meeting standards only at the tap -- most ground water
would not be restored or remediated, since meeting standards through wellhead
treatment could conceivably always be substituted for restoration of the ground
water itself. This approach, however, would not protect many potential future
users, particularly those with private wells, who may be unaware of the need to
treat the contaminated ground water before using it for drinking water.
Moreover, this approach depends entirely on institutional controls, which
should not be used as the primary remedy when more active remediation measures,
which provide greater reliability in the long term, are practicable.
Using the facility property boundary as a point of compliance for MCLs,
non-zero MCLGs, or alternate concentration limits raises similar problems. At
many CERCLA sites, the concept of a facility property boundary is not
meaningful because a facility is not in operation (CERCLA defines the concept
in terms of an area where contamination has come to be located). Also,
allowing higher ACLs to be set at the boundary in the hope that MCLs or non-
zero MCLGs will be achieved at a downgradient well through attenuation does not
meet the statutory prerequisites for ACLs in CERCLA section 121(d)(2)(B)(ii),
which requires (among other things) surface discharge of the ground water and
enforceable means of protecting against use of the contaminated ground water.
One commenter objected that the proposed policy was vague and failed to
give criteria for determining point of compliance.ever, EPA acknowledges that
an alternative point of compliance may also be protective of public health and
the environment under site-specific circumstances.
In particular, there may be certain circumstances where a plume of ground
water contamination is caused by releases from several distinct sources that
are in close geographical proximity. In such cases, the most feasible and
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effective ground-water cleanup strategy may be to address the problem as a
whole, rather than source-by-source, and to draw the point of compliance to
encompass the sources of release. In determining where to draw the point of
compliance in such situations, the lead agency will consider factors such as
the proximity of the sources, the technical practicability of ground-water
start 55 FR 8754
remediation at that specific site, the vulnerability of the ground water and
its possible uses, exposure and likelihood of exposure and similar
considerations. Additional guidance on dealing with remote sites is provided
in the preamble section above on ground-water policy.
Final rule: EPA is promulgating in final ' 300.430(f) (5) (iii) (A) the statement
on points of compliance ("performance shall be measured at appropriate
locations in the ground water, ...") that was in proposed
300.430(f) (4) (iii) (A) .
Name: Section 300.430(e)(2)(i)(F). Use of alternate concentration limits
(ACLs).
Proposed rule: The preamble to the proposed NCP (53 FR 51434) discussed
conditions under which alternate concentration limits (ACLs) specified under
CERCLA may be used as cleanup standards. The preamble explained that CERCLA
ACLs may be used if the conditions of CERCLA section 121(d)(2)(B)(ii) are met
and cleanup to MCLs or other protective levels is not practicable.
Response to comments: Several comments were made on the proposed preamble
section explaining the use of CERCLA ACLs. Some commenters supported the
proposed use of ACLs as is; others suggested that EPA should do more to
emphasize their utility, particularly within a facility; and one commenter
maintained that ACLs should not be less stringent than other standards.
In support of the proposal, one commenter pointed out that use of
institutional controls and ACLs are appropriate for the same reason, that is,
when use of treatment to attain drinking water standards is not practicable.
Other commenters noted that ACLs provide desirable flexibility and are already
well established under the RCRA program. One commenter pointed out that use of
an ACL at a site should not require a new risk assessment in addition to that
done during the RI/FS.
Some commenters suggested ways to expand the use of ACLs at CERCLA
cleanups. One commenter wanted EPA to include the use of ACLs in the NCP's
regulatory language. Another commenter, noting that Congress's concern was
primarily with use of ACLs for exposure points outside a facility, suggested
that ACLs could be expected to have great utility within the boundaries of a
CERCLA facility; they could be granted when contaminants in ground water will
attenuate to ARAR-compliant levels at the leading edge of the plume. With this
in mind the commenter suggested that ACLs should be an intrinsic consideration
in the initial step of ARARs identification. In a similar vein another
commenter suggested that the facility boundary should be defined to include the
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area covered by institutional controls for the purpose of the statutory
criteria and for defining the point of exposure.
EPA disagrees generally with those commenters who would extend the use of
CERCLA ACLs set above drinking water standards to areas within the facility
boundary or areas covered by institutional controls. EPA interprets the CERCLA
section on ACLs not as an entitlement, but rather as a limitation on the use of
levels in excess of standards that would otherwise be appropriate for a site.
Although the limitation refers only to areas outside the facility boundary, EPA
maintains that the same principle holds within the boundary (to the edge of any
waste management area left at the site), namely, that such ACLs should only be
used when active restoration of the ground water to MCLs or non-zero MCLGs is
not practicable. Clearly, the availability of institutional controls in itself
is not sufficient reason to extend the allowance for levels above drinking
water standards or non-zero goals; rather, as discussed elsewhere in the
preamble, institutional controls are considered as the sole remedy only where
active remediation is not practicable.
EPA also disagrees with a commenter who asserted that ACLs cannot be less
stringent than state or tribal ARARs or MCLGs. There is clearly no point to
the ACL described in CERCLA unless it is above the standard normally applied to
ground water of a given class. EPA does, however, believe that the policy
described above should mitigate the commenter's fears that ground water will be
sacrificed.
These comments suggest some confusion as to when MCLs or MCLGs need to be
waived under CERCLA section 121(d)(4). EPA's policy is that MCLs or MCLGs
above zero should generally be the relevant and appropriate requirement for
ground water that is or may be used for drinking, and that a waiver is
generally needed in situations where a relevant and appropriate MCL or non-zero
MCLG cannot be attained. If, however, a situation fulfills the CERCLA
statutory criteria for ACLs, including a finding that active restoration of the
groundwater to MCLs or non-zero MCLGs is deemed not to be practicable,
documentation of these conditions for the ACL is sufficient and additional
documentation of a waiver of the MCL or MCLG is not necessary.
In determining that a CERCLA ACL may be used outside the facility
boundary, the risk assessment and other analysis conducted in the RI/FS
generally should provide the information required for the documentation that
the statutory criteria and other guidelines given above are satisfied. EPA has
added a reference to use of ACLs as prescribed in CERCLA in
' 300.430(e) (2) (i) (F) .
Final rule: EPA has added a ' 300.430(e)(2)(i)(F) to the rule to reference the
language in CERCLA section 121(d)(2)(B)(ii) on alternate concentration limits.
Name: Section 300.430(e)(2). Use of federal water quality criteria (FWQC).
Proposed rule: The preamble to the proposed rule discussed when federal water
quality criteria are likely to be relevant and appropriate (53 FR 51442) . EPA
stated that a FWQC, or a component of a FWQC, may be relevant and appropriate
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when the FWQC is intended to protect the uses designated for the water body at
the site, or when the exposures for which the FWQC are protective are likely to
occur. In addition, whether a FWQC is relevant and appropriate depends on the
availability of standards, such as an MCL or state water quality standard,
specific for the constituent and use. In particular, when a promulgated MCL
exists, an FWQC would not be relevant and appropriate for a current or
potential drinking water supply.
Response to comments: One commenter opposed EPA's policy on the relevance and
appropriateness of federal water quality criteria (FWQC) for current or
potential drinking water sources when both FWQC and MCLs are available for a
contaminant. The commenter stated that the test for relevance and
appropriateness of an FWQC was whether it is protective of humans or aquatic
organisms and whether that kind of exposure is an issue at the site. The
commenter maintained that if an FWQC is more stringent than an MCL, the FWQC
should apply, consistent with the policy that the most stringent ARAR must be
complied with.
In response, FWQC are to be attained "where relevant and appropriate
under the circumstances of the release or threatened release," as provided in
CERCLA section 121(d)(2)(B). Final rule ' 300.430(e)(2)(i)(E) reflects this
fact. However, EPA believes that at many sites, FWQC will not be both relevant
and appropriate in light of other potential ARARs.
EPA agrees with the commenter that the more stringent ARAR should
generally be attained, especially in the
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start 55 FR 8755
case of "applicable" requirements. However, the determination of whether a
requirement is relevant and appropriate is not based on its stringency;
rather, other criteria are used, as discussed in the section on relevance and
appropriateness, and the remedy must comply with the most stringent
requirement determined to be ARAR. EPA also believes that, in some
situations, the availability of certain requirements that more fully match the
circumstances of the site may result in a decision that another requirement is
not relevant and appropriate. EPA believes that one such situation is when an
MCL or non-zero MCLG and an FWQC for human health are available for the same
contaminant when a current or potential source of drinking water is of
concern, and there are no impacts to aquatic organisms.
As discussed in this preamble, EPA believes that an MCL or non-zero MCLG
is generally the relevant and appropriate requirement for ground water that is
a current or potential source of drinking water. EPA also believes that an
MCL or non-zero MCLG, promulgated specifically to protect drinking water,
generally is the appropriate standard for ground water even if an FWQC for
human health is also available for the contaminant, for the following reasons.
CERCLA section 121(d)(2)(B)(i) lists, among other factors, the purpose
for which the criteria were developed and the designated or potential use of
the water as factors in determining whether FWQC are relevant and appropriate.
Since FWQC for human health are promulgated for exposures that include
drinking water and consuming fish, on the one hand, and consuming fish only,
on the other, it is not directly the purpose of such criteria to provide
drinking water standards per se, although levels that protect such a use can
be mathematically derived from these two values. Furthermore, such derived
values for drinking water will not reflect the contribution of other sources
(through an apportionment factor), as MCLs and MCLGs do. Finally, for
carcinogens FWQC are recommended at zero, although values corresponding to
— 5 — 6 — 7
risks of 10 , 10 , and 10 are also given. For the reasons given m the
discussion of MCLs and MCLGs above, the zero value is not considered relevant
and appropriate under CERCLA; MCLs, however, represent a level determined to
be both protective of human health for drinking water and attainable by
treatment.
For the same reasons, EPA believes that MCLs or non-zero MCLGs generally
will be the relevant and appropriate standard for surface water designated as
a drinking water supply, unless the state has promulgated water quality
standards (WQS) for the water body that reflect the specific conditions of the
water body. However, surface water bodies may be designated for uses other
than drinking water supply, and therefore an FWQC intended to be protective of
such uses, such as the FWQC for consumption of fish or for protection of
aquatic life, may very well be relevant and appropriate in such cases. Also,
where a contaminant does not have an MCL or MCLG, FWQC adjusted to reflect
drinking water use may be used as relevant and appropriate requirements.
Final rule: EPA is including in the final rule at
300.430(e)(2)(i)(E) language stating that FWQC are to be attained where
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relevant and appropriate under the circumstances of the release or threatened
release.
Name: Section 300.435(b)(2). Compliance with applicable or relevant and
appropriate requirements (ARARs) during the remedial action.
Proposed rule: CERCLA section 121 requires that, at the completion of a
remedial action, a level or standard of control required by an ARAR will be
attained for wastes that remain on-site. However, consistent with the 1985
NCP (' 300.68(i), ' 300.435(b) of the proposed NCP also required
compliance with ARARs during implementation of the action, stating that during
the course of the remedial design/remedial action (RD/RA), the lead agency
shall be responsible for ensuring that all federal and state ARARs identified
for the action are being met, unless a waiver is invoked. Examples of such
requirements given in the preamble to the proposed rule included RCRA
treatment, storage, and disposal requirements, Clean Air Act national ambient
air quality standards, and Clean Water Act effluent discharge limitations (53
FR 51440) .
Response to comments: EPA received a number of comments that the NCP should
not require compliance with ARARs during the remedial action. Commenters
argued that this policy is inconsistent with the statute, which requires
compliance with ARARs only at the completion of the remedial action, and
questioned EPA's authority to require compliance with ARARs during remedial
design/remedial action.
Several commenters pointed out that CERCLA section 121(d)(1) states that
remedial actions must be protective and "must be relevant and appropriate
under the circumstances," and argued that this standard should govern how the
action itself is carried out. Design and operation of the remedial action
should be based on best professional judgment and undertaken in a manner that
is protective. Other commenters suggested requiring compliance only with
those ARARs that "can reasonably be achieved," or listing specific types of
ARARs that must be met during RD/RA.
Commenters were particularly concerned about problems created by
requiring compliance with RCRA requirements and the land disposal restrictions
in particular for remedial actions.
EPA disagrees with these commenters. EPA believes that it is
appropriate to require that remedial activities comply with the substantive
requirements of other laws that apply or are relevant and appropriate to those
activities. The reasons for complying with such laws during the conduct of
the remediation are basically the same as the reasons for applying ARARs as
remediation objectives: the laws help define how the activity can be carried
out safely and with proper safeguards to protect human health and the
environment. EPA is concerned that, if the narrowest possible interpretation
were applied to ARARs compliance, compliance with laws critical to protection
of health and the environment would become subject to debate, laws such as
those that govern surface water discharges or air emissions, or that set
operational standards for incineration of hazardous waste.
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Several commenters also stated that chemical-specific ARARs used as
remediation goals, such as MCLs as ARARs for ground water remediation, cannot
be attained during implementation. EPA wants to clarify that it recognizes
that ARARs that are used to determine final remediation levels apply only at
the completion of the action.
It is worthwhile to point out, in the context of this policy on
complying with ARARs pertaining to the remedial activity itself, that CERCLA
provides a waiver from ARARs for interim actions, provided the final action
will attain the waived standard. If there is doubt about whether an ARAR
represents a final remediation goal or an interim standard, and it cannot be
met during the activity, this waiver could be invoked.
Comments were also received on EPA's discussion of compliance with ARARs
during remedial investigations in the preamble to the proposed NCP (53 FR
51442-43). In that discussion, EPA stated that on-site handling, treatment or
disposal of investigation-derived waste must satisfy ARARs and that the
start 55 FR 8756
field investigation teams should use best professional judgment in determining
when such wastes contain hazardous substances. One commenter recommended that
investigation-derived samples be required to be handled, treated, and disposed
in accordance with applicable RCRA requirements.
In response, EPA wishes to clarify the discussion in the preamble to the
proposed NCP. CERCLA section 101(23) defines "removal" to include "such
actions as may be necessary to monitor, assess, and evaluate the release or
threat of release of hazardous substances...[including] action taken under
section 104(b) of [CERCLA]." EPA has stated, therefore, that studies and
investigations undertaken pursuant to CERCLA section 104(b), such as
activities conducted during the RI/FS, are considered removal actions (54 FR
13298, March 31, 1989). EPA's policy, explained elsewhere in today's
preamble, is that removal actions will comply with ARARs to the extent
practicable, considering the exigencies of the circumstances. Thus, the field
investigation team should, when handling, treating or disposing of
investigation-derived waste on-site, conduct such activities in compliance
with ARARs to the extent practicable, considering the exigencies of the
situation. Investigation-derived waste that is transported off-site (e.g.,
for treatability studies or disposal) must comply with applicable requirements
of the CERCLA off-site policy (OSWER Directive No. 9834.11 (November 13, 1987)
and
300.440 when finalized (see 53 FR 48218, November 29, 1988). EPA notes that
CERCLA section 104(c)(1) provides that the statutory limits on removals do not
The CERCLA off-site policy requires that receiving facilities are in
compliance with "applicable laws." Note that many treatability study wastes
are exempt from the permitting requirement under RCRA (see 40 CFR 261.4(e)
and (f)).
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aPPly to investigations, monitoring, surveying, testing and other information-
gathering performed under CERCLA section 104(b).
Final rule: EPA is promulgating the rule as proposed except for minor editing
revisions.
Name: 300.5. Distinction between substantive and administrative requirements.
Proposed rule: The proposed definitions of "applicable" and "relevant and
appropriate" stated that they are cleanup standards, standards of control, and
other substantive environmental protection requirements, criteria or
limitations. The preamble to the proposed rule explained that requirements
that do not in and of themselves define a level or standard of control are
considered administrative (53 FR 51443). Administrative requirements include
the approval of, or consultation with, administrative bodies, issuance of
permits, documentation, and reporting and recordkeeping. Response actions
under CERCLA are required to comply with ARARs, which are defined not to
include administrative requirements.
Response to comments: Many comments were received on EPA's differentiation
between substantive and administrative requirements. Some commenters
supported the distinction between substantive and administrative requirements.
Other commenters disagreed with EPA's interpretation for various reasons.
Several commenters argued that Superfund actions should not be exempt
from consultation requirements. One commenter argued that consultation with a
state may be necessary to determine how state ARARs apply to the remedy. A
commenter contended that it is virtually impossible to meet substantive
requirements without consultation. One commenter asserted that state
procedures or methodology necessary to determine permit levels should be
considered state ARARs. Another argued that not requiring consultation runs
opposite to the spirit of cooperation with states. One commenter suggested
narrowing the exemption to allow for consultation through existing Superfund
mechanisms such as consent orders, SMOAs, and cooperative agreements.
Commenters also objected to the exemption from reporting and
recordkeeping requirements. One contended that EPA had no legal authority for
such exemption. Others argued that reporting and recordkeeping are necessary
to ensure proper control of hazardous substances that will remain on-site and
are also necessary for activities with local impacts: long-term water
diversions and air or surface water releases. Commenters asserted that the
lead agency must meet reporting requirements to avoid gaps in a state's
environmental data. One commenter noted that there are a number of federal
and state programs that require the maintenance of complete databases and that
the NCP's approach is inconsistent with such programs. Under these programs,
a state needs all discharge information in order to evaluate surface water
toxicity impacts in a stream or to establish total maximum daily loads.
The concern was also raised that maintaining reporting and recordkeeping
procedures on a site-by-site basis would undermine a state's standardized
reporting requirements, e.g., ground-water monitoring report forms, NPDES
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forms, etc. Also, unique site approaches to reporting and recordkeeping may
result in problems not detected by a state. Further, these commenters stated
that they were not aware of Superfund recordkeeping and reporting
requirements. One commenter stated that reporting requirements and compliance
mechanisms during remedy implementation and O&M periods should be specified
through Superfund mechanisms, as appropriate. One commenter contended that if
Superfund insists on this distinction, a determination whether a requirement
is substantive or administrative must be documented.
EPA has reviewed these comments, but concludes, as stated in the
preamble to the proposed NCP (53 FR 51443), that CERCLA response actions
should be subject only to substantive, not administrative, requirements. EPA
believes that this interpretation is most consistent with the terms of CERCLA
and with the goals of the statute. Section 121(d)(2) provides that remedial
actions should require "a level or standard of control" which attains ARARs;
only substantive standards set levels or standards of control. Moreover,
Congress made clear in sections 121(d)(2) and (d)(4) that the "standards" or
"requirements" of other laws that are ARARs should be applied to actions
conducted on-site, and specifically provided in section 121(e)(1) that federal
and state permits would not be required for such on-site response actions.
These subsections reflect Congress' judgment that CERCLA actions should not be
delayed by time-consuming and duplicative administrative requirements such as
permitting, although the remedies should achieve the substantive standards of
applicable or relevant and appropriate laws. Indeed, CERCLA has its own
comparable procedures for remedy selection and state and community
involvement. EPA's approach is wholly consistent with the overall goal of the
Superfund program, to achieve expeditious cleanups, and reflects an
understanding of the uniqueness of the CERCLA program, which directly impacts
more than one medium (and thus overlaps with a number of other regulatory and
statutory programs). Accordingly, it would be inappropriate to formally
subject CERCLA response actions to the multitude of administrative
requirements of other federal and state offices and agencies.
start 55 FR 8757
At the same time, EPA recognizes the benefits of consultation,
reporting, etc. To some degree, these functions are accomplished through the
state involvement and public participation requirements in the NCP. In
addition, EPA has already strongly recommended that its regional offices (and
states when they are the lead agency) establish procedures, protocols or
memoranda of understanding that, while not recreating the administrative and
procedural aspects of a permit, will ensure early and continuous consultation
and coordination with other EPA programs and other agencies. CERCLA
Compliance with Other Laws Manual, OSWER Directive No. 9234.1-01 (August 8,
1988). In working with states, EPA generally will coordinate and consult with
the state superfund office. That state superfund office should distribute to
or obtain necessary information from other state offices interested in
activities at Superfund sites.
The basis for this recommendation is a recognition that such
coordination and consultation is often useful to determine how substantive
requirements implemented under other EPA programs and by other agencies should
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be applied to a Superfund action. For example, although the Superfund office
will make the final decisions on using ARARs, a water office may provide
information helpful in determining ARARs when a surface water discharge is
part of the Superfund remedy. Such information may include surface water
classifications, existing use designations, technology-based requirements, and
water quality standards. A water office may also be able to provide advice
during the detailed analysis of alternatives on the effectiveness and
implementability of treatment alternatives and the likely environmental fate
and effects of surface or ground-water discharges. Other offices or agencies
with different environmental responsibilities may similarly provide useful
information, if it is given in a timely manner.
EPA also recognizes the importance of providing information to other
programs and agencies that maintain environmental data bases. This is
particularly true where the remedy includes releases of substances into the
air or water and the extent of such releases is integral for air and water
programs to maintain accurate information on ambient air and surface water
quality in order to set statutorily-specified standards. Monitoring
requirements themselves are considered substantive requirements and are
necessary in order to document attainment of cleanup levels and compliance
with emission limitations or discharge requirements identified as ARARs in the
decision document. EPA strongly encourages its OSCs or RPMs, or the agency
that is responsible for maintaining the operation and maintenance of an action
(e.g., pump and treat system), to provide reports on monitoring activities to
other offices in a form usable to those offices.
In summary, cleanup standards must be complied with; although
administrative procedures such as consultation are not required, they should
be observed when, for example, they are useful in determining the cleanup
standards for a site. EPA believes that in order to ensure that Superfund
actions proceed as rapidly as possible it must maintain a distinction between
substantive and administrative requirements.
Final rule: EPA is promulgating the reference to "substantive" in the ' 300.5
definitions of "applicable" and "relevant and appropriate" as proposed.
Name: Section 300.430(f)(1)(ii)(B). Consideration of newly promulgated or
modified requirements.
Proposed rule: The preamble to the proposed rule discussed how new
requirements or other information developed subsequent to the initiation of
the remedial action should be addressed (53 FR 51440). It explained that new
requirements or other information should be considered as part of the five-
year review (as provided for in ' 300.430(f)(3)(v))(renumbered as final
300.430(f) (5) (iii) (C) ) to ensure that the remedial action is
still protective of human health and the environment. That is, if a
requirement that would be applicable or relevant and appropriate to the remedy
is promulgated after the initiation of remedial action, the remedy will be
evaluated in light of the new requirement to ensure that the remedy is still
protective.
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Response to comments: Several commenters objected to EPA's policy requiring
consideration of new requirements on the grounds that the statute requires the
five-year review only to determine that a remedy is still protective. These
commenters were concerned that consideration of new requirements would require
additional analysis and perhaps drastic changes in design; would impose an
open-ended liability on PRPs; and would violate PRPs' right to due process.
Two commenters suggested that making new requirements part of a negotiation
process based on a reopener in the settlement agreement could alleviate the
second and third concern.
Based on the comments and its experience in carrying out remedies, EPA
is modifying its policy on considering newly promulgated or modified
requirements to address those requirements that are promulgated or modified
after the ROD is signed, rather than those requirements promulgated or
modified after the initiation of remedial action, as discussed in the
proposal. Once a ROD is signed and a remedy chosen, EPA will not reopen that
decision unless the new or modified requirement calls into question the
protectiveness of the selected remedy. EPA believes that it is necessary to
"freeze ARARs" when the ROD is signed rather than at initiation of remedial
action because continually changing remedies to accommodate new or modified
requirements would, as several commenters noted, disrupt CERCLA cleanups,
whether the remedy is in design, construction, or in remedial action. Each of
these stages represents significant time and financial investments in a
particular remedy. For instance, the design of the remedy (treatment plant,
landfill, etc.) is based on ARARs identified at the signing of the ROD. If
ARARs were not frozen at this point, promulgation of a new or modified
requirement could result in a reconsideration of the remedy and a re-start of
the lengthy design process, even if protectiveness is not compromised. This
lack of certainty could adversely affect the operation of the CERCLA program,
would be inconsistent with Congress' mandate to expeditiously cleanup sites
and could adversely affect PRP negotiations, as noted by commenters. The
policy of freezing ARARs will help avoid constant interruption, re-evaluation,
and re-design during implementation of selected remedies.
EPA believes that this policy is consistent with CERCLA section
121(d) (2) (A), which provides that "the remedial action selected... shall
require, at the completion of the remedial action," attainment of ARARs. EPA
interprets this language as requiring attainment of ARARs identified at remedy
selection (i.e., those identified in the ROD), not those that may come into
existence by the completion of the remedy. Neither the explicit statutory
language nor the legislative history supports a conclusion that a ROD may be
subject to indefinite revision as a result of shifting
start 55 FR 8758
requirements. Rather, given the need to ensure finality of remedy selection
No commenters objected to the position in the preamble to the proposed rule
that CERCLA remedial actions should attain ARARs identified at the
initiation -- versus completion -- of the action.
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in order to achieve expeditious cleanup of sites, and given the length of time
often required to design, negotiate, and implement remedial actions, EPA
believes that this is the most reasonable interpretation of the statute.
As EPA discusses elsewhere in this preamble, one variation to this
policy occurs when a component of the remedy was not identified when the ROD
is signed. In that situation, EPA will comply with ARARs in effect when that
component is identified (e.g., during remedial design), which could include
requirements promulgated both before and after the ROD was signed. EPA notes
that newly promulgated or modified requirements may directly apply or be more
relevant and appropriate to certain locations, actions or contaminants than
existing standards and, thus, may be potential ARARs for future responses.
It is important to note that a policy of freezing ARARs at the time of
the ROD signing will not sacrifice protection of human health and the
environment, because the remedy will be reviewed for protectiveness every five
years, considering new or modified requirements at that point, or more
frequently, if there is reason to believe that the remedy is no longer
protective of health and environment.
In response to the specific comments received, EPA notes that under this
policy, EPA does not intend that a remedy must be modified solely to attain a
newly promulgated or modified requirement. Rather, a remedy must be modified
if necessary to protect human health and the environment; newly promulgated or
modified requirements contribute to that evaluation of protectiveness. For
example, a new requirement for a chemical at a site may indicate that the
_2
cleanup level selected for the chemical corresponds to a cancer risk of 10
c
rather than 10 , as originally thought. The original remedy would then have
to be modified because it would result in exposures outside the acceptable
risk range that generally defines what is protective.
This policy that newly promulgated or modified requirements should be
considered during protectiveness reviews of the remedy, but should not require
a reopening of the ROD during implementation every time a new state or federal
standard is promulgated or modified, was discussed in the preamble to the
proposed rule (53 FR at 51440) but not in the rule section itself. For the
reasons outlined above, EPA believes that this concept is critical to the
expeditious and cost-effective accomplishment of remedies duly selected under
CERCLA and the NCP, and thus is appropriate for inclusion in
300.430(f)(1)(ii)(B) of the final NCP. This will afford both the public
and implementing agencies greater clarity as to when and how requirements must
be considered during CERCLA responses, and thus will allow the CERCLA program
to carry out selected remedies with greater certainty and efficiency. Of
course, off-site CERCLA remedial actions are subject to the substantive and
procedural requirements of applicable federal, state, and local laws at the
time of off-site treatment, storage or disposal.
Final rule: EPA is adding the following language to the rule at
300.430(f)(1)(ii)(B):
(B) On-site remedial actions selected in a ROD must attain those
ARARs that are identified at the time of ROD signature or provide
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grounds for invoking a waiver under
' 300.430(f) (1) (ii) (C) (3) .
(^) Requirements that are promulgated or modified after ROD
signature must be attained (or waived) only when determined to be
applicable or relevant and appropriate and necessary to ensure that the
remedy is protective of human health and the environment.
(2) Components of the remedy not described in the ROD must attain
(or waive) requirements that are identified as applicable or relevant
and appropriate at the time the amendment to the ROD or the explanation
of significant differences describing the component is signed.
Name: Applicability of RCRA requirements.
Proposed rule: The preamble to the proposed rule discussed when RCRA Subtitle
C requirements will be applicable for site cleanups (53 FR 51443). It
described the prerequisites for "applicability" at length, which are that: (1)
the waste must be a listed or characteristic RCRA hazardous waste and (2)
treatment, storage or disposal occurred after the effective date of the RCRA
requirements under consideration (for example, because the activity at the
CERCLA site constitutes treatment, storage, or disposal, as defined by RCRA).
The preamble explained how EPA will determine when a waste at a CERCLA
site is a listed RCRA hazardous waste. It noted that it is often necessary to
know the origin of the waste to determine whether it is a listed waste and
that, if such documentation is lacking, the lead agency may assume it is not a
listed waste.
The preamble discussed how EPA will determine that a waste is a
characteristic hazardous waste under RCRA. It stated that EPA can test to
determine whether a waste exhibits a characteristic or can use best
professional judgment to determine whether testing is necessary, "applying
knowledge of the hazard characteristic in light of the materials or process
used. "
The preamble also discussed when a CERCLA action constitutes "land
disposal," defined as placement into a land disposal unit under section
3004(k) of RCRA, which triggers several significant requirements, including
RCRA land disposal restrictions (LDRs) and closure requirements (when a unit
is closed). It equated an area of contamination (AOC), consisting of
continuous contamination of varying amounts and types at a CERCLA site, to a
single RCRA land disposal unit, and stated that movement within the unit does
not constitute placement. It also stated that placement occurs when waste is
redeposited after treatment in a separate unit (e.g., incinerator or tank), or
when waste is moved from one AOC to another. Placement does not occur when
waste is consolidated within an AOC, when it is treated in situ, or when it is
left in place.
Response to comments: EPA received many comments on its discussion of when
RCRA requirements can be applicable to CERCLA response actions. On the issue
of compliance with RCRA in general, most of these commenters argued that RCRA
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requirements are not intended for site cleanup actions, that such compliance
will result in delays and that RCRA requirements are often unnecessary to
protect human health and the environment at CERCLA sites. Other commenters
argued, however, that EPA is trying to avoid compliance with RCRA
requirements. Most of the comments, however, focused on when LDRs are
applicable to CERCLA actions and on EPA's discussion of what actions
associated with remediation trigger LDRs.
Some commenters opposed EPA's interpretation of "land disposal" or
"placement" as too lenient, believing that EPA is trying to avoid compliance
with RCRA laws, particularly LDRs. These commenters argued that LDRs should
be applicable when hazardous wastes are managed, excavated, or moved in any
way. One argued that ARARs waivers are available to address situations when
the LDR levels cannot be achieved and should be used as necessary, rather than
trying to narrowly define the universe of ARARs to avoid waivers. This
commenter was also concerned with EPA's use of the term "unit," calling it an
inappropriate concept for Superfund sites because it
start 55 FR 8759
will allow the excavation and redeposition of waste within very large areas
without ever meeting RCRA design and operating standards and LDR. One
commenter asserted that EPA concerns on LDRs stem from an unjustifiable belief
that LDR cleanup levels cannot be achieved.
Other commenters believed that the definition of "placement" should
provide more flexibility. One asserted that replacement of treated residuals
in the proximate area should not constitute placement. The commenter argued
that Congress intended to address, preventively or prospectively, the original
act of disposal, and that an innocent government or public entity should not
be required to assume the entire environmental responsibility of the original
disposers. The commenter also argued that establishing that replacement of
treated waste triggers LDRs will be a serious disincentive to treating wastes.
Some commenters argued that LDRs should not be relevant and appropriate where
the CERCLA waste to be disposed on land is merely similar in composition to
RCRA banned waste.
Other commenters argued that LDRs are inappropriate for CERCLA remedial
actions. They noted an inherent conflict between LDRs, which require
treatment to BDAT levels, and the CERCLA process, and claimed that LDRs will
supplant CERCLA's "carefully articulated and balanced approach to remedy
selection." Commenters asserted that compliance with LDRs will create
technical problems because of differences between CERCLA wastes and those
evaluated for LDRs. The solutions recommended by these commenters primarily
focused on narrowing or eliminating RCRA applicability, but included
suggestions for creating treatability groups for CERCLA-type waste and seeking
legislative waivers from LDRs, e.g., a waiver from LDRs for Superfund actions
at NPL sites.
One commenter believed that the concept of "unit" is not readily
transferable to CERCLA sites due to the age and former uses of many of the
sites undergoing remediation. Given the ramifications of LDRs, the commenter
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argued, it may be more reasonable to create a presumption of treating the
entire site as one "unit, " even if remediation includes a series of operable
units.
Some comments were received on EPA's statements on consolidating waste.
One stated that consolidation of small amounts of waste across units should
not be considered placement, because that will lead to less environmentally
sound and less cost-effective solutions, particularly if LDRs are triggered.
Another recommended that EPA should allow consolidation of small volumes of
waste anywhere on-site, for purposes of storage or treatment, without
triggering otherwise applicable RCRA standards. Another commenter requested
clarification that consolidation within a unit included normal earthmoving and
grading operations.
1. Actions constituting land disposal. EPA disagrees with commenters
who considered EPA's interpretation of the definition of "land disposal" under
RCRA section 3004(k) to be too narrow. These commenters argued that any
movement of waste should be considered "placement" of waste, and thus "land
disposal" under RCRA section 3004(k).
The definition of "land disposal" is central to determining whether the
RCRA LDRs are applicable to a hazardous waste which is being managed as part
of a CERCLA response action, or RCRA closure or corrective action. The term
"land disposal" is defined under RCRA section 3004(k) as including, but not
limited to, "any placement of such hazardous waste in a landfill, surface
impoundment, waste pile, injection well, land treatment facility, salt dome
formation, salt bed formation, or underground mine or cave." The terms
"landfill", "surface impoundment," and the others, refer to specific types of
units defined under RCRA regulations. Thus, Congress generally defined the
scope of the LDR program as the placement of hazardous waste in a land
disposal unit, as those units are defined under RCRA regulations.
EPA has consistently interpreted the phrase "placement ... in" one of
these land disposal units to mean the placement of hazardous wastes into one
of these units, not the movement of waste within a unit. See e.g., 51 FR
40577 (Nov. 7, 1986) and 54 FR 41566-67 (October 10, 1989)(supplemental
proposal of possible alternative interpretations of "land disposal"). EPA
believes that its interpretation that the "placement... in" language refers to
a transfer of waste into a unit (rather than simply any movement of waste) is
not only consistent with a straightforward reading of section 3004(k), but
also with the Congressional purpose behind the LDRs. The central concern of
Congress in establishing the LDR program was to reduce or eliminate the
practice of disposing of untreated hazardous waste at RCRA hazardous waste
facilities. The primary aim of Congress was prospective rather than directed
at already-disposed waste within a land disposal unit. See 51 FR 40577 (Nov.
7, 1986). Moreover, interpreting section 3004(k) to require application of the
LDRs to any movement of waste could be difficult to implement and could
interfere with necessary operations at an operating RCRA facility. For
instance, when hazardous waste is disposed of in a land disposal unit at an
operating RCRA facility, there may well be some "movement" of the waste
already in the unit. Under the commenters' approach, such movement without
pretreatment of the moved waste could be in violation of the LDRs. Thus,
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under the commenters' interpretation, virtually no operational activities
could occur at any RCRA land disposal unit containing hazardous waste without
pretreatment of any waste disturbed by the operation; clearly an infeasible
approach.
EPA also believes that this interpretation of section 3004(k) is
supported by the legislative history for this provision (see 129 Cong. Rec.
H8139 (Oct. 6, 1983)(statement of Rep. Breaux)), and by the Congressional
choice to define "land disposal" more narrowly for purposes of application of
the LDRs than the already-existing term "disposal", which has a much broader
meaning under RCRA. Under RCRA section 1004(3), the term "disposal" is very
broadly defined and includes any "discharge, deposit, injection, dumping,
spilling, leaking, or placing" of waste into or on any land or water. Thus,
"disposal" (in a statutory, rather than the regulatory Subtitle C meaning of
the term) would include virtually any movement of waste, whether within a unit
or across a unit boundary. In fact, the RCRA definition of "disposal" has
been interpreted by numerous courts to include passive leaking, where no
active management is involved (see, e.g., U.S. v. Waste Industries, Inc., 734
F.2d 159 (4th Cir. 1984). However, Congress did not use the term "disposal"
as its trigger for the RCRA land disposal restrictions, but instead
specifically defined the new, and more narrow, term "land disposal" in section
3004(k). The broader "disposal" language continues to be applicable to RCRA
provisions other than those in Subtitle C, such as section 7003. Thus, for
the reasons outlined above, EPA believes that the existing interpretation,
that movement of waste within a unit does not constitute "land disposal" for
purposes of application of the RCRA LDRs, is reasonable.
With respect to the commenter who asked whether normal earthmoving and
grading operations within a land disposal unit constitute "placement into the
unit", under EPA's interpretation of RCRA section 3004(k), such activity would
not be "placement into
start 55 FR 8760
the unit" and thus the RCRA LDRs and other Subtitle C disposal requirements
would not be applicable (nor would the requirement to obtain a permit under
RCRA or minimum technology requirements in RCRA section 3004(o) apply).
Given this interpretation of section 3004(k), EPA does not believe that
it is necessary to invoke ARAR waivers of LDRs for any movement of waste
within a unit, which was the alternative suggested by the commenters. Nor
does EPA believe that the widespread use of such waivers would be practical or
desirable. 54 FR 41568-69 (October 10, 1989).
EPA also does not fully agree with the commenters who argued that the
RCRA concept of "unit" does not apply to CERCLA sites. The commenters who
criticized the application of the RCRA "unit" to the CERCLA area of
contamination for purposes of section 3004(k) believed it to be either too
broad, allowing large areas to escape the LDRs, or too narrow, not allowing
entire CERCLA sites to be considered a single "unit". In contrast to
hazardous waste management units at a RCRA facility, CERCLA sites often do not
involve discrete waste management units, but rather involve land areas on or
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in which there can be widespread areas of generally dispersed contamination.
Thus, determining the boundaries of the RCRA land disposal "unit," for which
section 3004(k) would require application of the LDRs at these sites, is not
always self-evident.
EPA generally equates the CERCLA area of contamination with a single
RCRA land-based unit, usually a landfill. 54 FR 41444 (December 21, 1988).
The reason for this is that the RCRA regulatory definition of "landfill" is
generally defined to mean a land disposal unit which does not meet the
definition of any other land disposal unit, and thus is a general "catchall"
regulatory definition for land disposal units. As a result, a RCRA "landfill"
could include a non-discrete land area on or in which there is generally
dispersed contamination. Thus, EPA believes that it is appropriate generally
to consider CERCLA areas of contamination as a single RCRA land-based unit, or
"landfill". However, since the definition of "landfill" would not include
discrete, widely separated areas of contamination, the RCRA "unit" would not
always encompass an entire CERCLA site.
Waste consolidation from different units or AOCs at a CERCLA site are
subject to any applicable RCRA requirements regardless of the volume of the
waste or the purpose of the consolidation. Thus, EPA disagrees with those
commenters that asserted that small volumes of hazardous waste at a CERCLA
site can be consolidated anywhere on-site for storage or treatment purposes
without consideration of any applicable RCRA requirements. Such requirements
may, however, be subject to ARAR waivers in appropriate circumstances.
The remaining comments received with respect to EPA's interpretation of
section 3004(k) discussed the achievability of LDR cleanup levels, questioned
the appropriateness of applying the LDRs to remedial actions, and requested
more flexibility regarding the LDRs. These comments were the basis for EPA's
supplemental notice and proposed reinterpretation of section 3004(k), which is
discussed below.
In light of the numerous comments received on the interpretation of
"land disposal" in RCRA section 3004(k), as it relates to removal, treatment,
and redeposition of hazardous wastes generated by CERCLA and RCRA remedial and
other activities, and in view of the important policy decisions that RCRA LDRs
pose for the CERCLA and RCRA programs, EPA decided to separately and more
fully discuss the issue, the interpretation outlined in the proposed NCP, and
possible alternative interpretations of "land disposal". In a supplemental
notice to the proposed NCP (54 FR 41566 (Oct. 10, 1989)), EPA outlined several
technical, policy, and legal issues concerning LDR applicability to removal,
treatment, and redeposition of hazardous wastes, and requested comment on two
alternative interpretations of "land disposal". The first alternative would
allow the excavation and replacement of previously disposed hazardous wastes
in the same unit or area of contamination; since the same wastes would remain
in the same unit, this activity would not constitute "land disposal". Under
the second alternative, hazardous wastes could be excavated and redeposited
either within the original unit or area of contamination, or elsewhere at the
site in a new or existing unit. These interpretations would allow greater
flexibility in remedial decision-making, in the context of both CERCLA actions
and RCRA corrective actions and closures.
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On November 6 and 7, 1989, EPA held a forum on contaminated soil and
groundwater ("Contaminated Media Forum") to provide an opportunity for
interested groups to further address these issues. The Contaminated Media
Forum was attended by representatives from EPA, states, environmental groups,
Congress, and the regulated community. A summary of the concerns raised and
suggested solutions appears in the public docket for this rulemaking.
2. Selection of LDR treatment standards. Upon further examination, EPA
believes that many of the problems discussed in the supplemental notice, and
raised by commenters, result from treatment standards developed pursuant to
the RCRA LDR program that are generally inappropriate or infeasible when
applied to contaminated soil and debris. As discussed in the October 1989
notice, EPA's experience under CERCLA has been that treatment of large
quantities of soil and debris containing relatively low levels of
contamination using LDR "best demonstrated available technology" (BDAT) is
often inappropriate. 54 FR 41567, 41568 (October 10, 1989). EPA noted that:
Experience with the CERCLA program has shown that many sites will have
large quantities -- in some cases, many thousands of cubic meters -- of
soils that are contaminated with relatively low concentrations of
hazardous wastes. These soils often should be treated, but treatment
with the types of technologies that would meet the standard of BDAT may
yield little if any environmental benefit over other treatment based
remedial options.
54 FR 41568 (October 10, 1989). Examples of these and other situations
reflecting EPA's experience concerning the inappropriateness of incinerating
contaminated soil and debris are included in the record for this rule. In
addition, as discussed below, EPA has experienced problems in achieving the
current non-combustion LDRs for contaminated soil and debris. Based on EPA's
experience to date and the virtually unanimous comments supporting this
conclusion, EPA has determined that, until specific standards for soils and
debris are developed, current BDAT standards are generally inappropriate or
unachievable for soil and debris from CERCLA response actions and RCRA
corrective actions and closures. Instead, EPA presumes that, because
contaminated soil and debris is significantly different from the wastes
evaluated in establishing the BDAT standards, it cannot be treated in
accordance with those standards and thus qualifies for a treatability variance
from those standards under 40 CFR 268.44.
Accordingly, persons seeking a treatability variance from LDR treatment
standards for contaminated soil and debris do not need to demonstrate on a
case-by-case basis
start 55 FR 8761
that BDAT standards for prohibited hazardous wastes are inappropriate or not
achievable. As an alternative, persons seeking a treatability variance for
soil and debris may meet the appropriate levels or percentage reductions in
the currently available guidance (Superfund LDR Guidance #6A, "Obtaining a
Soil and Debris Treatability Variance for Remedial Actions", EPA OSWER
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Directive 9347.3-06FS, July 1989). In the context of Superfund Records of
Decision (ROD), this means that EPA will generally include such a variance in
the proposed plan and ROD when treatment of contaminated soil and debris is a
element of the remedial action. Further, EPA intends to issue guidance
supplementing the Superfund Guidance #6A to expedite the processing of such
treatability variances in conjunction with established remedy selection
procedures.
Treatment standards for prohibited hazardous wastes are based on
performance achievable by application of BDAT. 51 FR at 40578 (Nov. 7, 1986)
BDAT, however, is not a technology-forcing program, nor does it always
require the lowest possible levels of waste treatment achievable with any
technology. See 130 Cong. Rec. S9178 (July 25, 1984) (Statement of Sen.
Chaffee introducing the amendment that became RCRA section 3004(m)). Rather,
what Congress contemplated is a scheme whereby hazardous wastes are to be
treated using the technology (or technologies) generally considered to be
suitable for the waste and that substantially diminish the toxicity of the
waste or substantially reduce the likelihood of migration. Id.; see also H.
Rep. No. 198, 98th Cong. 1st Sess. 33; S. Rep. No. 284, 98th Cong. 1st Sess.
16-17 .
EPA's rules developing treatment standards likewise recognize that the
treatment standards be based on appropriate technologies even if more
stringent treatment methods are technically feasible. 51 FR at 40588-592
(Nov. 7, 1986). For example, EPA has generally based treatment standards for
organic contaminants in wastewaters (normally defined as aqueous materials
containing less than 1% total organic compound (TOC) and total suspended
solids (TSS)) on technologies other than incineration (or other combustion),
even though such organics could be treated to lower levels if the wastewaters
were incinerated. This is because incineration (or other combustion) is not
normally an appropriate technology for wastewaters, notwithstanding its
capability of performing to lower levels than conventional wastewater
treatment. More generally, EPA's rules on treatability variances recognize
that prohibited wastes be treated by appropriate technologies. The rules thu
state that a petitioner may request a treatability variance "where the
treatment technology is not appropriate to the waste". 40 CFR 268.44(a).
Similarly, treatability variances are warranted where the applicable
numerical treatment standard for the waste cannot be achieved. 40 CFR
268.44(a). For this reason, EPA has found that current BDAT standards based
on noncombustion technology also warrant a treatability variance for soil and
debris. The complex matrices often present in soil and debris may reduce the
effectiveness of stabilization and other noncombustion technologies in
treating these wastes. For example, the presence of oil and grease or
sulfites in the mixture may substantially interfere with the stabilization
process. More generally, stabilization is a complex treatment process and it
application to unique soil and debris mixtures is not yet well understood.
EPA's development of alternative treatment levels in the Superfund Guidance
#6A noted above was based on available data for soil and debris mixtures and
thus is more tailored with respect to achievability than the existing BDAT
standards for these waste mixtures. The difference between these levels and
the existing BDAT standards for these wastes demonstrates the feasibility of
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achieving the current BDAT standards for soil and debris. These alternative
numbers thus support EPA's presumption that the BDAT standards are generally
inappropriate or not achievable for soil and debris.
This presumption is supported by the commenters on the December, 1988
and October, 1989 proposals. EPA received numerous comments from a wide range
of commenters discussing the inappropriateness or infeasibility of applying
BDAT standards to contaminated soil and debris. The principal reason given
for the inappropriateness of the current BDAT standards was the complexity of
soil and debris mixtures and the interference with treatability caused by
unique matrices of contaminants in the soil and debris. Moreover, commenters
noted that wastestream-derived BDATs have not been fully demonstrated for many
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contaminated soils and debris and that the presence of trace quantities of one
waste in soil and debris may
inappropriately require use of a treatment method that would not otherwise be
applicable to the other wastes present. These comments were further supported
by comments made at the Contaminated Media Forum.
The Agency's experience also supports this conclusion of general
inappropriateness or infeasibility of current BDAT standards for soil and
debris. For example, as indicated above, EPA has developed alternative
treatment levels for soil and debris in the Superfund #6A guidance which are
based on the application of the specific treatment technologies to soil and
debris, rather than industrial process wastes. Thus, these alternative levels,
which are better tailored to the treatability of the complex soil and debris
mixtures found at Superfund sites, reflect Agency experience concerning the
inappropriateness or infeasibility of current BDAT for soil and debris.
EPA has long indicated its intention to develop separate treatment
standards for contaminated soil and debris (without regard, incidentally, to
the origin of such waste, so that the treatment standards would apply whether
the soil and debris is generated from a CERCLA action or some other activity).
51 FR 40577 (Nov. 7, 1986). Although the Agency has already expended
considerable effort on such standards, it has not been able to propose or
promulgate regulations because of the more pressing need to implement the rest
of the land disposal prohibition statutory provisions before the various
statutory deadlines. See RCRA sections 3004(d), (e), and (g). EPA does not
expect that the same level of treatment performance will be required for soil
and debris as for industrial process wastes.
In the interim period until EPA promulgates these treatment standards,
contaminated soil and debris are subject to the same treatment standards as the
prohibited hazardous wastes that they contain, unless a variance is appropriate
and is approved according to 40 CFR 268.44. 53 FR at 31146-149 (Aug. 17, 1988)
and Chemica^JJaste_^anac[ement v. EPA, 869 F.2d 1526, 1535-46, 1538-40 (D.C.
Cir. 1989) . Where standards for the underlying waste are based on the
performance of incineration, EPA has granted national capacity variances for
the contaminated soils and debris because there is insufficient national
capacity to treat these wastes. 40 CFR 268.30(c), 268.31(a) (1), 268.32(d) (1),
268.33(b), and 268.34(d). Where BDAT treatment standards are in effect, it is
possible to petition for a treatability variance based on the inappropriateness
of the BDAT standards to treat the contaminated soil and debris. 40 CFR
268.44(a). As discussed earlier, EPA
start 55 FR 8762
believes that it is unnecessary for petitioners (or the lead Agency in CERCLA
response actions) to make site-specific demonstrations that BDAT standards are
inappropriate for contaminated soil and debris. The numerous comments and
Agency experience supporting a presumption that the BDAT standards are
inappropriate or not achievable is clearly warranted at this time because the
criteria in 40 CFR 268.44 for treatability variances are generally met for soil
and debris. As a result, under EPA's established treatability variance
procedures (40 CFR 268.44), variance applications for contaminated soil and
-------
debris do not need to demonstrate that the physical and chemical properties
differ significantly from wastes analyzed in developing the treatment standard
and that, therefore, the waste cannot be treated to specified levels or by
specified methods. Petitions need only focus on justifying the proposed
alternative levels of performance, using existing interim guidance containing
suggested treatment levels for soil and debris (Superfund LDR Guidance #6A,
"Obtaining a Soil and Debris Treatability Variance for Remedial Actions", EPA
OSWER Directive 9347.3-06FS, July 1989)) as a benchmark.
Although the presumption is that BDAT standards are not appropriate for
soil and debris, there may be special circumstances where EPA determines that
the existing BDAT standards are appropriate for contaminated soils and debris
at a particular site, such as where high levels of combustible organics in soil
are present. In these circumstances, the Agency would make a determination
that treatment to the BDAT standards was appropriate and would require such
treatment.
EPA regulations provide that treatability variances may be issued on a
site-specific basis. 40 CFR 268.44(h). Thus, they may be approved
simultaneously with the issuance of a RCRA permit, the approval of a RCRA
closure plan, or the selection of a remedy in a CERCLA response action in the
ROD. In the case of an on-site CERCLA response action, the procedural
requirements of the variance process do not apply. See CERCLA section
121(e) (1) and 121(d) (2) . The variance decision will be made as part of EPA's
remedy selection process, during which data justifying alternative treatment
levels will be included in the administrative record files, and public
participation opportunities and Agency response to comment will be afforded as
appropriate under this rule.
In light of today's determination, the application of this rule requires
clarification in two respects. First, although EPA is today establishing a
general presumption that BDAT standards are inappropriate or not achievable
for treating soil and debris, the Agency does not believe that this
presumption triggers the rulemaking variance procedures in 40 CFR 268.44(a).
Even with the presumption, treatment levels will be determined on a case-by-
case basis, and commenters may submit information contending that the
presumption is not applicable in a particular case. Thus, it is EPA's view
that the site-specific, non-rulemaking procedures in 40 CFR 268.44(h) are
entirely appropriate. See 53 FR 31199-31200 (August 17, 1988).
Second, EPA does not interpret its site specific variance procedures as
invariably requiring applicants to demonstrate that they cannot meet
applicable treatment levels or methods. The first sentence of 40 CFR
268.44(h) makes it clear that an applicant may make one of two demonstrations
to qualify for a variance: he may show either that he cannot meet a treatment
standard, or that a treatment method (or the method underlying the standard is
inappropriate for his waste. The final sentence of 268.44(h), identifying
the showing an applicant must include in his variance application, on its
terms applies only to applications submitted under the first criterion. EPA's
presumption, however, applies to soil and debris regardless of which of the
two types of variances apply.
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In EPA's view, the Agency's determination that the BDAT standards are
generally inappropriate for contaminated soil and debris addresses many of the
practical concerns raised by commenters in the supplemental notice on the
Agency's interpretation of the term "land disposal". For this reason, and
because EPA has had insufficient time to review and evaluate the many lengthy
and complex issues raised by commenters on the supplemental notice, EPA is
deferring any final decision to modify that interpretation. (EPA will respond
to comments on the alternatives in the supplemental notice when the Agency
makes a final decision on the proposed reinterpretation of land disposal.)
Until a final decision is made, the interpretation announced in the preamble to
the proposed NCP and discussed in section 1 above will remain in effect.
Final rule: There is no rule language on this issue.
Name: Determination of whether a waste is a hazardous waste.
Proposed rule: The preamble to the proposed rule discussed how to determine
whether hazardous waste regulated under RCRA Subtitle C was present at a site
(53 FR 51444) .
Response to comments: Some commenters raised questions about EPA's discussion
about determining whether a waste exhibits a hazardous characteristic. One
argued that EPA cannot assume a waste is not a characteristic waste in the
absence of testing and should therefore adopt a liberal and inclusive approach
to determining whether RCRA applies to avoid expensive and time-consuming
testing. Another commenter asked for clarification on who was responsible for
applying "process knowledge" to determine whether a waste was a hazardous waste
in the absence of testing. The commenter asserted that, under RCRA, EPA
exercises prosecutorial discretion if a generator, acting in good faith,
decides incorrectly that his waste is not hazardous. EPA notes that when it
determines that there is a violation there will normally be some kind of
enforcement action taken; the level and type of prosecutorial response will
depend on a number of factors, for example, the size of the company, the
significance of the violation, the intent, etc.
Under RCRA rules, a generator is not required to test, but may use
knowledge of the waste and its constituents to judge whether the waste exhibits
a characteristic. (See 40 CFR 262.11(c).) EPA believes this should also apply
if the lead agency or PRP at a CERCLA site is the "generator." EPA wants to
make clear, however, that a decision that a waste is not characteristic in the
absence of testing may not be arbitrary, but must be based on site-specific
information and data collected on the constituents and their concentrations
during investigations of the site. Based on site data, it will be very clear
in some cases that a waste cannot be characteristic; for example, if a waste
does not contain a constituent regulated as EP toxic, a decision that the waste
does not exhibit this characteristic can reliably be made without testing for
EP toxicity. EPA does not expect to undertake testing when it can otherwise be
determined with reasonable certainty whether or not the waste will exhibit a
characteristic.
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In response to the second concern, the determination whether a waste is a
hazardous waste may be made by EPA, the state, or a PRP, depending on the
nature of the action. EPA will take any necessary or appropriate action if
decisions about the hazardous nature of the waste are in error or are made
without proper basis.
Several commenters discussed the question of whether RCRA requirements
can be applicable to RCRA hazardous waste disposed of before the RCRA
requirements went into effect in 1980. One commenter argued that they could
not be, unless the waste exhibited a characteristic at the time of the CERCLA
action. However, as one commenter noted, EPA has consistently maintained in
enforcement actions that RCRA requirements apply to any waste
start 55 FR 8763
materials disposed of prior to 1980 when those materials are managed or
disposed of today. EPA agrees with this latter comment and believes that this
policy applies to CERCLA actions as well. This was also upheld in a recent
D.C. Court of Appeals decision, Chemica^JJaste_^anac[emen^^;_JijPA, 869 F.2d 1526
(D.C. Cir. 1989) . RCRA requirements can apply when the CERCLA action
constitutes treatment, storage or disposal of RCRA hazardous waste. Note that
RCRA requirements may also be relevant and appropriate to pre-1980 waste.
One commenter suggested that EPA allow consolidation, for purposes of
storage or treatment, of small volumes of wastes without triggering RCRA
standards. In response, while EPA appreciates the concerns with meeting
substantive storage and treatment requirements for small amounts of waste, EPA
believes that waste should be managed according to standards when those
standards are ARARs unless a waiver (such as for interim measures) can be
justified. It should be noted that RCRA may not be applicable for small
quantity generators, as defined under RCRA; however, a determination would
still have to be made about whether any RCRA requirements would be relevant and
appropriate to small quantities.
Final rule: There is no rule language on this issue.
Name: When RCRA requirements are relevant and appropriate to CERCLA actions.
Proposed rule: The preamble to proposed 300.400(g)(2)(i), identification of
applicable or relevant and appropriate requirements, criteria for relevant and
appropriate, stated that RCRA requirements may be relevant and appropriate when
a waste is similar in composition to a RCRA listed waste (53 FR 51446).
Response to comments: 1. RCRA requirements as relevant and appropriate for
wastes similar to RCRA hazardous waste. Several commenters expressed concern
that RCRA requirements may be potentially relevant and appropriate for waste
that is not a RCRA hazardous waste, but is similar to a RCRA hazardous waste.
Commenters argued that virtually any waste or CERCLA substance is similar to a
RCRA hazardous waste in some way, either in chemical composition, in toxicity,
in mobility, or in persistence, and were concerned that this policy represented
an enormous expansion of the RCRA program.
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EPA believes that RCRA requirements can potentially be relevant and
appropriate to wastes other than those that are known to be hazardous waste.
For example, some information or records must be available that identify the
source of the waste in order to determine that the waste is a listed hazardous
waste. As a result, two separate wastes could be identical in composition, but
only one identified as a RCRA hazardous waste because manifests are available
that identify it as a listed waste. RCRA requirements would be applicable for
the manifested waste, but not for the other, even though the two wastes are
physically the same. EPA believes that RCRA requirements can be potentially
relevant and appropriate when the waste cannot be definitively identified as a
listed hazardous waste.
EPA wants to emphasize, however, that a number of the factors identified
in ' 300.400(g)(2) should be considered in determining whether a RCRA
requirement is relevant and appropriate. The similarity of the waste to RCRA
hazardous waste or the presence of a RCRA constituent alone does not create a
presumption that a RCRA requirement will be relevant and appropriate. Nor is
it always necessary or useful to conduct an in-depth, constituent-by-
constituent comparison of a CERCLA waste with RCRA hazardous wastes, because
most RCRA requirements are the same regardless of the specific composition of
the hazardous waste. Indeed, the statute requires attainment of those
requirements that are relevant and appropriate under the circumstances of the
release. Thus, the decision about whether a RCRA requirement is relevant and
appropriate is based on consideration of a variety of factors, including the
nature of the waste and its hazardous properties, other site characteristics,
and the nature of the requirement itself.
EPA anticipates that it will often find some RCRA requirements to be
relevant and appropriate at a site and others not, even for the same waste.
This is because certain waste characteristics shared with RCRA hazardous wastes
may be more important than others when evaluating whether a given requirement
is relevant and appropriate. For example, the mobility of the waste, among
other factors, may be a key concern in evaluating whether the RCRA requirement
that the cap used in closing a landfill be less permeable than the bottom liner
(40 CFR 264.310(a)(5)) is relevant and appropriate. Other properties of the
waste might be more important in evaluating the relevance and appropriateness
of other RCRA requirements.
2. RCRA requirements as relevant and appropriate for mining wastes.
Several commenters asked EPA to state in the NCP or its preamble that RCRA
Subtitle C requirements will not be relevant and appropriate to mining wastes.
They noted that, recognizing the unique characteristics of mining wastes,
Congress exempted certain mining wastes from regulation as hazardous wastes
under RCRA until EPA completed studies on these wastes to determine
specifically whether such regulation was appropriate. On July 3, 1986, EPA
published its determination for beneficiation and extraction wastes which found
that regulation under Subtitle C was not warranted for these wastes, because
EPA believes such requirements, "...if universally applied, would be either
unnecessary to protect human health and the environment, technically
infeasible, or economically impracticable to implement." (51 FR 24496.) The
commenters argue, therefore, that Subtitle C requirements, which are not
-------
legally applicable to these mining wastes, also cannot be relevant and
appropriate, since EPA has formally made the determination that these
requirements are not appropriate for such wastes.
The commenters emphasized that mining waste sites differ in a number of
ways from industrial wastes sites. They argue that mining wastes are of
enormous volume and generally of lower toxicity, that the sites typically cover
extremely large areas and may present less hazard because they tend to be in
drier climates, reducing leaching potential, or contain constituents that are
less mobile. For these reasons, which formed the basis of EPA's decision under
RCRA, RCRA requirements would not be relevant and appropriate for mining sites
remediated under CERCLA. Commenters requested that EPA give guidance
specifically in the NCP to ensure consistent decisions on ARARs at mining
sites.
EPA agrees that RCRA requirements for hazardous waste will not be
applicable to those mining wastes excluded from regulation by the statute.
(Note, however, that EPA has recently removed certain mineral processing wastes
from the mining waste exclusion, making them subject to Subtitle C, 54 FR
36592, September 1, 1989; 55 FR 2322, January 23, 1990. EPA has also
promulgated regulations listing certain wastes from mineral processing
operations as hazardous, 53 FR 35412, September 13, 1988.) In addition, EPA
agrees that RCRA Subtitle C requirements will generally not be
start 55 FR 8764
relevant and appropriate for those mining wastes for which EPA has specifically
determined that such regulation is not warranted. The reason is that the
factors that caused EPA not to regulate these wastes as hazardous include many
of the same factors that EPA considers in judging whether a requirement is
relevant and appropriate at a particular site.
However, EPA does not agree that RCRA requirements for hazardous waste
can never be relevant and appropriate for CERCLA remediation of mining sites.
In its determination for beneficiation and extraction wastes, EPA found that,
"if_^niversall^^j3£lied, " Subtitle C requirements would not be appropriate for
mining wastes. (51 FR 24500.) However, a decision about whether a requirement
is relevant and appropriate is made on a case-by-case basis, based on the
specific characteristics of the site and the release. There may be some sites
where the site circumstances differ significantly from those which caused EPA
to decide that Subtitle C regulation is not warranted and where certain
requirements are appropriate and well-suited to the site or portions of the
site. In such a situation, some RCRA requirements may be relevant and
appropriate.
EPA is developing regulations under Subtitle D of RCRA designed
specifically for mining wastes that will not be regulated as hazardous waste.
When promulgated, these regulations are likely to be either applicable or
relevant and appropriate for remediation of mining sites.
Another commenter stated that EPA needs to develop a long-term initiative
to simplify the use of RCRA ARARs. EPA recognizes that the interaction between
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the two laws can be very complicated and continues to work to resolve and give
guidance on issues involving CERCLA compliance with RCRA laws.
Final rule: There is no rule language on this issue.
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Name: Examples of potential federal and state ARARs and TBCs.
Potential ARARs and TBCs include, but are not limited to, the following:
1. Federal requirements which may be potential applicable or relevant
and appropriate requirements.
i. EPA's Office of Solid Waste administers, inter alia, the Resource
Conservation and Recovery Act of 1976, as amended, (42 U.S.C. 6901).
Potentially applicable or relevant and appropriate requirements pursuant to
that Act are:
a. Open Dump Criteria -- Pursuant to RCRA Subtitle D criteria for
classification of solid waste disposal facilities (40 CFR Part
257) .
Note: Only relevant to nonhazardous wastes.
b. RCRA Subtitle C requirements governing standards for owners and
operators of hazardous waste treatment, storage, and disposal
facilities: (40 CFR Part 264, for permitted facilities, and 40
CFR Part 265, for interim status facilities):
(1) Ground-Water Protection and Monitoring (40 CFR
264.90-264.109).
(2) Closure and Post Closure (40 CFR 264.110-264.120).
(3) Containers (40 CFR 2 64.170-264.178).
(4) Tanks (40 CFR 2 64.190-264.199).
(5) Surface Impoundments (40 CFR 264.220-264.249).
(6) Waste Piles (40 CFR 2 64.250-264.269).
(7) Land Treatment (40 CFR 264.270-264.299) .
(8) Landfills (40 CFR 2 64.300-264.339).
(9) Incinerators (40 CFR 264.340-264.999).
(10) Land Disposal Restrictions (40 CFR 268.1-268.50).
(11) Dioxin-containing wastes (50 FR 1978).
(12) Standards of performance for storage vessels for petroleum
liquids (40 CFR Part 60, Subparts K and K(a)).
(13) Codification rule for 1984 RCRA amendments (50 FR 28702,
July 15, 1985; 52 FR 45788, December 1, 1987) .
ii. EPA's Office of Water administers several potentially applicable or
relevant and appropriate statutes and regulations issued thereunder:
a. Section 14.2 of the Public Health Service Act as amended by the
Safe Drinking Water Act, as amended, (42 U.S.C. 300(f)).
(1) Maximum Contaminant Levels (for all sources of drinking water
exposure). (40 CFR 141.11-141.16).
(2) Maximum Contaminant Level Goals (40 CFR 141.50-141.52, 50 FR
46936).
(3) Underground Injection Control Regulations (40 CFR Parts 144,
145, 146, 147) .
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b. Clean Water Act, as amended, (33 U.S.C. 1251).
(1) Requirements established pursuant to sections 301, 302, 303
(including state water quality standards), 304, 306, 307,
(including federal pretreatment requirements for discharge
into a publicly owned treatment works), 308, 402, 403 and
404 of the Clean Water Act. (33 CFR Parts 320-330, 40 CFR
Parts 122, 123, 125, 131, 230, 231, 233, 400-469).
(2) Available federal water quality criteria documents are listed
at 45 FR 79318, November 28, 1980; 49 FR 5831, February 15,
1984; 50 FR 30784, July 29, 1985; 51 FR 8012, March 7, 1986;
51 FR 22978, June 28, 1986; 51 FR 43665, December 3, 1986;
52 FR 6213, March 2, 1987; 53 FR 177, January 5, 1988; 53 FR
19028, May 26, 1988; 53 FR 33177, August 30, 1988; 54 FR
19227, May 4, 1989.
(3) Clean Water Act section 404(b)(1) Guidelines for Specification
of Disposal Sites for Dredged or Fill Material (40 CFR Part
230) .
(4) Procedures for Denial or Restriction of Disposal Sites for
Dredged Material (Clean Water Act section 404(c) Procedures,
33 CFR Parts 320-330, 40 CFR Part 231).
c. Marine Protection, Research, and Sanctuaries Act (33 U.S.C. 1401).
(1) Incineration at sea requirements (40 CFR Parts 220-225, 227-
229. See also 40 CFR 12 5.120-125.124).
iii. EPA's Office of Pesticides and Toxic Substances administers the Toxic
Substances Control Act (15 U.S.C. 2601). Potentially applicable or relevant
and appropriate requirements pursuant to that Act are:
PCB requirements generally: 40 CFR Part 761; Manufacturing,
Processing, Distribution in Commerce, and Use of PCBs and PCB
Items (40 CFR 7 61.20-761.30); Markings of PCBs and PCB Items (40
CFR 7 61.40-761.45); Storage and Disposal (40 CFR 761.60-761.79);
Records and Reports (40 CFR 761.180-761.185, 761.187 and 761.193).
See also 40 CFR 129.105, 750.
iv. EPA's Office of External Affairs administers potentially applicable or
relevant and appropriate requirements regarding requirements for floodplains
and wetlands (40 CFR Part 6, Appendix A).
v. EPA's Office of Air and Radiation administers several potentially
applicable or relevant and appropriate statutes and regulations issued
thereunder:
a. The Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C.
2022) and Health and Environmental Protection Standards for
Uranium and Thorium Mill Tailings (40 CFR Part 192).
b. Clean Air Act (42 U.S.C. 7401) .
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(1) National Primary and Secondary Ambient Air Quality Standards
(40 CFR Part 50).
(2) Standards for Protection Against Radiation (10 CFR Part 20).
See also 10 CFR Parts 10, 40, 60, 61, 72, 960, 961.
(3) National Emission Standards for Hazardous Air Pollutants (40
CFR Part 61). See also 40 CFR 427.110-427.116, 763.
(4) New source performance standards (40 CFR Part 60).
vi. Other Federal Requirements:
a. National Historic Preservation Act (16 U.S.C. 470). Compliance
with NHPA
start 55 FR 8765
required pursuant to 7 CFR Part 650. Protection of Archaeological
Resources: Uniform Regulations -- Department of Defense (32 CFR
Part 229), Department of the Interior (43 CFR Part 7).
b. D.O.T. Rules for the Transportation of Hazardous Materials, 49 CFR
Parts 107, 171, 172.
c. The following requirements are also potentially ARAR:
(1) Endangered Species Act of 1973 (16 U.S.C. 1531) . Generally,
50 CFR Parts 81, 225, 402.
(2) Wild and Scenic Rivers Act (16 U.S.C. 1271) .
(3) Fish and Wildlife Coordination Act (16 U.S.C. 661).
(4) Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
136) 40 CFR Part 165.
(5) Wilderness Act (16 U.S.C. 1131) .
(6) Coastal Barriers Resources Act (16 U.S.C. 3501) .
(7) Surface Mining Control and Reclamation Act (30 U.S.C. 1201) .
(8) Coastal Zone Management Act of 1972 (16 U.S.C. 1451) .
Generally, 15 CFR Part 930 and 15 CFR 923.45 for Air and
Water Pollution Control Requirements.
(9) Magnuson Fishery Conservation and Management Act (16 U.S.C.
1801 et seq.).
(10) Marine Mammal Protection Act (16 U.S.C. ' 1361 et seq.).
2. Examples of potential state ARARs.
i. State requirements for disposal and transport of radioactive wastes.
ii. State approval of water supply system additions or developments.
iii. State ground-water withdrawal approvals.
iv. Requirements of authorized (Subtitle C of RCRA) state hazardous
waste programs.
v. State Implementation Plans (SIPs) and delegated programs under the
Clean Air Act.
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vi. Approved state NPDES program under the Clean Water Act.
vii. Approved state underground injection control (UIC) programs under
the Safe Drinking Water Act.
viii. Approved state wellhead protection programs.
ix. State water quality standards.
x. State air toxics regulations.
3. Other federal criteria, advisories, and guidance, to be considered,
i. Federal Criteria, Advisories, and Procedures.
a. Health Effects Assessments (HEAs) and Proposed HEAs ("Health
Effects Assessment Summary Tables," updated quarterly).
b. Reference Doses (RfDs)("Health Effects Assessment Summary Tables,"
updated quarterly, or "Integrated Risk Information System (IRIS),"
updated monthly).
c. Slope Factors for Carcinogens ("Health Effects Assessment Summary
Tables," updated quarterly, or "Integrated Risk Information System
(IRIS)," updated monthly).
d. Pesticide registrations and registration data.
e. Pesticide and food additive tolerances and action levels. Note:
Germane portions of tolerances and action levels may be
pertinent and therefore are to be considered in certain
situations.
f. PCB Spill Cleanup Policy (52 FR 10688, April 2, 1987).
g. Waste load allocation procedures. (40 CFR Parts 125, 130).
h. Federal sole source aquifer requirements (52 FR 6873, March 5,
1987) .
i. Public health basis for the decision to list pollutants as
hazardous under section 112 of the Clean Air Act.
j. EPA's Ground-Water Protection Strategy.
k. Guidance on Remedial Actions for Contaminated Ground Water at
Superfund Sites (Draft, October 1986) establishes criteria for the
use of background concentrations and ACLs.
1. Superfund Public Health Evaluation Manual.
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m. TSCA health data.
n. TSCA chemical advisories.
o. ATSDR Toxicological Profiles.
p. Advisories issued by FWS and NWFS under the Fish and Wildlife
Coordination Act.
q. TSCA Compliance Program Policy, ("TSCA Enforcement Guidance Manual
Policy Compendium," USEPA, OECM, OPTS, March 1985) .
r. Health Advisories, EPA Office of Water.
s. EPA/DOT Guidance Manual on Hazardous Waste Transportation,
ii. USEPA RCRA Guidance Documents.
a. Alternate Concentration Limits (ACL) Guidance (draft).
b. EPA's RCRA Design Guidelines
(1) Surface Impoundments -- Liner Systems, Final Cover, and
Freeboard Control.
(2) Waste Pile Design -- Liner Systems.
(3) Land Treatment Units.
(4) Landfill Design -- Liner Systems and Final Cover.
c. Permitting Guidance Manuals.
(1) Permit Applicant's Guidance Manual for Hazardous Waste Land
Treatment, Storage, and Disposal Facilities.
(2) Permit Applicant's Guidance Manual for the General Facility
Standards of 40 CFR 264.
(3) Permit Writer's Guidance Manual for Hazardous Waste Land
Treatment, Storage, and Disposal Facilities.
(4) Permit Writer's Guidance Manual for the Location of Hazardous
Waste Land Storage and Disposal Facilities: Phase I, Criteria
for Location Acceptability and Existing Regulations for
Evaluating Locations.
(5) Permit Writer's Guidance Manual for Subpart F.
(6) Permit Applicant's Guidance Manual for the General Facility
Standards.
(7) Waste Analysis Plan Guidance Manual.
(8) Permit Writer's Guidance Manual for Hazardous Waste Tanks.
(9) Model Permit Application for Existing Incinerators.
(10) Guidance Manual for Evaluating Permit Applications for the
Operation of Hazardous Waste Incinerator Units.
(11) A Guide for Preparing RCRA Permit Applications for Existing
Storage Facilities.
(12) Guidance Manual on Closure and Post-Closure Interim Status
Standards.
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d. Technical Resource Documents (TRDs).
(1) RCRA Ground-Water Monitoring Technical Enforcement Guidance
Document.
(2) Evaluating Cover Systems for Solid and Hazardous Waste.
(3) Hydrologic Simulation of Solid Waste Disposal Sites.
(4) Landfill and Surface Impoundment Performance Evaluation.
(5) Lining of Water Impoundment and Disposal Facilities.
(6) Management of Hazardous Waste Leachate.
(7) Guide to the Disposal of Chemically Stabilized and Solidified
Waste.
(8) Closure of Hazardous Waste Surface Impoundments.
(9) Hazardous Waste Land Treatment.
(10) Soil Properties, Classification, and Hydraulic Conductivity
Testing.
e. Test Methods for Evaluating Solid Waste.
(1) Solid Waste Leaching Procedure Manual.
(2) Methods for the Prediction of Leachate Plume Migration and
Mixing.
(3) Hydrologic Evaluation of Landfill Performance (HELP) Model
Hydrologic Simulation and Solid Waste Disposal Sites.
(4) Procedures for Modeling Flow Through Clay Liners to Determine
Required Liner Thickness.
(5) Test Methods for Evaluating Solid Wastes.
(6) A Method for Determining the Compatability of Hazardous
Wastes.
(7) Guidance Manual on Hazardous Waste Compatability.
start 55 FR 8766
iii. USEPA Office of Water Guidance Documents.
a. Pretreatment Guidance Documents.
(1) 304(g) Guidance Document on Revised Pretreatment Guidelines (3
volumes).
b. Water Quality Guidance Documents.
(1) Ecological Evaluation of Proposed Discharge of Dredged
Material into Ocean Waters (1977) .
(2) Technical Support Manual: Waterbody Surveys and Assessments
for Conducting Use Attainability Analyses (1983) .
(3) Water-Related Environmental Fate of 129 Priority Pollutants
(1979) .
(4) Water Quality Standards Handbook (1983) .
(5) Technical Support Document for Water Quality-Based Toxics
Control.
(6) Developing Requirements for Direct and Indirect Discharges of
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-256-
CERCLA Wastewater (1987) .
c. NPDES Guidance Documents.
(1) NPDES Best Management Practices Guidance Manual (June 1981) .
(2) Case studies on toxicity reduction evaluation (May 1983) .
d. Ground Water/UIC Guidance Documents.
(1) Designation of a USDW.
(2) Elements of Aquifer Identification.
(3) Definition of major facilities.
(4) Corrective action requirements.
(5) Requirements applicable to wells injecting into,
above an aquifer that has been exempted pursuant
146.104 (b) (4) .
(6) Guidance for UIC implementation on Indian lands.
e. Clean Water Act Guidance Documents.
f. Guidance for Applicants for State Well Head Protection Program
Assistance Funds under the Safe Drinking Water Act (Office of
Ground-Water Protection, June 1987) .
iv. USEPA Manuals from the Office of Research and Development.
a. EW 846 methods -- laboratory analytic methods.
b. Lab protocols developed pursuant to Clean Water Act section 304(h).
v. Other.
a. Data Quality Objectives, Volumes I and II.
b. Guidance for Conducting Remedial Investigations and Feasibility
Studies Under CERCLA (Draft).
c. Guidance on Preparing Superfund Decision Document: The Proposed
Plan and Record of Decision (Draft).
d. Standard Operating Safety Guides.
through, or
to 40 CFR
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COMMUNITY RELATIONS
Name: Sections 300.430(c), 300.430(f)(2), (3) and (6). Community relations
during Rl/FS and selection of remedy.
Existing rule: Sections 300.67(a) and (c) require the lead agency to develop
and implement a community relations plan (CRP) at NPL sites prior to
initiation of field activities. In the case of removal actions or other
short-term actions, ' 300.67(b) requires that a spokesperson be designated and
a CRP prepared if the action exceeds 45 days. Section 300.67(d) states that
the lead agency must provide the public with not less than 21 calendar days to
review and comment on the feasibility study (FS). Public meetings should be
held during the comment period and the lead agency may also provide the public
with an opportunity to comment during the development of the FS. A document
summarizing major issues raised by the public is required by ' 300.67(e). The
summary must include how the issues are addressed. Section 300.67(f)
indicates that in enforcement actions, the CRP and public review of the FS may
be modified or adjusted at the direction of the court. Section 300.67(g)
states that when responsible parties implement site remedies, the lead agency
shall provide public notice and a 30-day comment period. In addition, a
document summarizing the major issues raised by the public and how they are
addressed must be prepared.
Proposed rule: In the 1986 amendments to CERCLA, Congress added a new section
117 to provide for involvement by the public in Superfund decision-making.
The NCP incorporates these new statutory requirements and those in existing
policy, as well as several additional requirements based on program
experience.
Proposed ' 300.430(c) requires the lead agency, to the extent
practicable prior to commencing field work for the remedial investigation
(RI), to conduct community interviews, prepare a formal CRP, and to establish
a local information repository. Section 300.430(f) requires that a proposed
plan be prepared. After preparation of the proposed plan, ' 300.430(f)(2)
requires the lead agency to publish a notice of availability and brief
analysis of the proposed plan, make the proposed plan available in the
administrative record, provide a public comment period of not less than 30
calendar days on the proposed plan and supporting analysis and information,
including the Rl/FS, provide an opportunity for a public meeting, keep a
transcript of the public meeting and make it available to the public, prepare
a written summary of significant comments submitted along with the lead agency
response, and make the summary available with the record of decision (ROD).
When the ROD is signed, ' 300.430(f)(5)
(' 300.430(f)(6) in the final rule) requires the lead agency to publish a
notice of availability and make the ROD available for public inspection prior
to the start of remedial action. Section 300.815(a) requires the lead agency
to make the administrative record file available for public inspection when
the RI begins.
General discussion: CERCLA establishes the basic framework for community
relations activities during response actions. Consistent with the flexibility
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provided by CERCLA and to allow public participation activities to be tailored
to site-specific circumstances, the NCP specifies the minimum level of public
involvement but does not preclude the lead agency from undertaking additional
public involvement activities where appropriate. EPA has implemented a
variety of additional public involvement activities at Superfund sites over
the past nine years that have proven helpful to affected communities in
understanding and participating in response action decision-making.
Shortly after the completion of the public comment period on the
proposed NCP last year, EPA issued "A Management Review of the Superfund
Program," William K. Reilly, Administrator, U.S. Environmental Protection
Agency. One aspect of the study was community involvement. The study
includes a series of recommendations, some of which reinforce existing
practices while others present new ideas. Many specific recommendations in
this report are consistent with requirements in the final rule. Other ideas
discussed in the management review are highlighted in today's preamble as
further examples of good program practice that encourage public involvement.
Public participation and involvement is also a major focus of
administrative record requirements under Subpart I. Requirements and
recommendations on Subparts E and I on public participation interrelate to a
large degree. Therefore, there is some discussion in this section of today's
preamble on the administrative record.
Response to comments: Many comments were received on the community relations
requirements in the NCP. Some commenters addressed the organization of
community relations requirements in the proposed NCP. One commenter supported
the reorganization of community relations requirements with the actions to
which they apply. Another commenter stated that the requirements should be in
a separate subpart with subsections corresponding to the phases of the
process.
start 55 FR 8767
EPA disagrees that community relations should be in a separate subpart.
EPA purposely reorganized the placement of community relations requirements
in order to ensure a clearer and more orderly integration of community
relations into each appropriate phase of the Superfund process.
Several commenters recommended increased opportunities for public
participation, while one commenter suggested that the proposed community
relations procedures that exceed those required by CERCLA may hinder timely
cleanup efforts. The commenters recommending increased participation asserted
that the NCP should specify formal public involvement throughout the entire
process, beginning with notification to communities at the preliminary
assessment/site inspection (PA/SI) stage and continuing through site closure
and deletion. A commenter stated that the Superfund process should include
regular input from the community and another commenter suggested that the
public should be informed about the project and any problems that may arise in
the short
and long term. Several commenters stated that investigators should use
citizens as a source of information about sites in their communities.
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In response, EPA does not agree that the proposed community relations
requirements will hinder timely cleanups because such requirements have been
carefully integrated into the response process so as not to interfere with
other activities necessary for cleanup. EPA encourages the lead agency to
involve the interested public through all stages of the cleanup process and to
be responsive to the communications needs of communities near Superfund sites.
It is EPA's experience, however, that not all communities desire or request a
multitude of public involvement activities. Moreover, the degree of
appropriate involvement will vary with the characteristics of the site and the
nature of the response. Therefore, EPA believes that it is inappropriate to
specify in a general rule, such as the NCP, a detailed regimen of all
potential public involvement activities that may be appropriate or desirable
in certain situations. Thus, EPA believes that the provisions in the NCP
which incorporate statutory requirements and basic community relations
activities which EPA has found through experience to be necessary, establish
adequate minimum public involvement requirements for all Superfund sites.
If, however, members of a community desire more opportunities for
participation or involvement than specified in the NCP, for example, public
involvement activities as early as the PA/SI stage, they may request that the
lead agency conduct such activities. Informal contact with interested
community members and local officials during the early stages of the response
process may be desirable, for example, in communities where it is suspected
that the site presents a high risk to the population or where there is
significant citizen interest. A mailing list of interested community members
could be compiled at this stage as necessary to implement public involvement
activities. Moreover, a fact sheet could be prepared during the SI to explain
the purpose of the SI and its possible outcomes.
EPA agrees that interviews of residents of the community can be a major
source of information about conditions at and the history of a site. Through
such interviews, the lead agency can also identify community-specific
interests and concerns and may also gather information helpful in identifying
PRPs. The NCP includes community interviews as part of the public involvement
activities to be conducted at Superfund sites.
Another commenter suggested that the public should be involved through
meetings and comment periods before the proposed plan is issued. One
commenter suggested that the lead agency be required to hold a public meeting
on the work plan for the RI and that the community should be allowed to review
the RI report. The commenter further suggested that written responsiveness
summaries be prepared by the lead agency for the comments raised at the public
meeting on the RI. Another commenter felt that the public should receive more
education about the ramifications of investigation results. In addition, a
commenter asserted that information on risk should be included in RI/FS
reports and should be explained to the public.
The NCP provides one formal comment period on the proposed response
action at all sites (except certain time-critical removals). In addition, the
administrative record is available for public review prior to, and following,
the formal comment period. While EPA agrees that additional comment periods
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and meetings, both formal and informal, may be appropriate and desirable at
certain sites, decisions on what type of additional formal public involvement
activities are warranted must be made on a site-specific basis, and thus are
not mandated in the NCP. If a person needs more information about a site,
he/she may, at any time in the remedial process, review the ongoing
compilation of documents in the administrative record file or request that the
lead agency conduct a public briefing or workshop in addition to that required
by the NCP. EPA may conduct a public briefing on the RI work plan or provide
some other type of public information meeting when there is sufficient public
interest. EPA encourages all lead agencies to consider such activities.
Similarly, if a person needs more explanation concerning the RI and risk
assessment and ramifications associated with them (a description of the risk
posed by a site generally is included in the RI report), he/she can request
that the lead agency conduct a public briefing. Lead agencies are encouraged
but not required to prepare a responsiveness summary for any comments
submitted outside of formal comment periods.
Several commenters addressed the development of CRPs. One commenter
argued that the start of community interviews should be publicized and should
include mention of the availability of technical assistance grants (TAGs).
Another commenter objected to the limited, nonsubstantive nature of community
interviews. Other commenters said there should be more community involvement
in developing CRPs and that they should be a "two-way communications tool",
rather than a "one-way dialogue" or "sell job" from the agency to the
community. Additional commenters suggested that the community should review
drafts of the CRP.
EPA does not agree that the lead agency must publish a notice in a
newspaper on the initiation of community interviews. The lead agency
generally will give notice to key community leaders that interviews are being
conducted. Every effort is made to obtain a broad representation of the
community in selecting individuals to interview and additional names may be
gathered during the interview process. The NCP identifies local officials,
community residents, public interest groups, or other interested or affected
parties as individuals to interview, but this is not meant to be an all
inclusive list. EPA believes that any and all interested parties are
potential interviewees. EPA has added the requirement that the lead agency
inform the members of the community of the availability of technical
assistance grants (TAGs). In response to comments that the community should
review drafts
start 55 FR 8768
of the CRP, generally it is not EPA's practice to publicly release draft
documents in order to protect the lead agency's deliberative process.
However, persons may submit comments on the final CRP to the lead agency,
which may, as appropriate, revise the CRP in response to these comments. And,
in fact, since the CRP is itself a public involvement tool, lead agencies may
modify public outreach activities based on the interviews or other information
obtained through implementation of the CRP.
During the community interviews, the lead agency is required to
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determine "how and when citizens would like to be involved in the Superfund
program." Once this is known, the public participation activities desired can
be planned and implemented on a site-specific basis appropriate to the level
of interest within that community. These activities will be described in the
CRP that is developed for each site. Therefore, because the interviews are
the primary source of information to the lead agency about community concerns,
and such information is used to develop the CRP, EPA does not agree with the
commenters' description of the CRP as a "one-way dialogue" or "sell job." EPA
intends that there be extensive public involvement in developing the CRP,
namely in identifying community concerns about the site and in determining the
appropriate opportunities for community involvement in site activities.
However, because such comments were received revealing an apparent
misunderstanding of the CRP, EPA is revising
300.430(c) to clarify the purpose of the CRP which is: (1) to ensure that
the public receives appropriate opportunities for involvement in a wide
variety of site-related decisions, including during site analysis and
characterization, alternatives analysis, and selection of remedy; (2) to
determine, based on community interviews, appropriate activities to ensure
such public involvement; and (3) to provide appropriate opportunities for the
community to learn about the site.
One commenter claimed that while potentially responsible parties (PRPs)
are involved at every step of the remedial process, citizens are shut out of
decision-making concerning the scope of the sampling programs, definitions of
affected populations, assumptions made during risk assessments, establishment
of remedial action objectives, and many other issues that are central to the
final selection of remedy. Other comments were received on the availability
and accessibility of information. One commenter observed that information
repositories should be locally available. Several commenters suggested that
free copies of documents should be made available and the repository should
include an index to facilitate document retrieval. One commenter stated that
there should be citizen review of contractor reports.
EPA agrees that the lead agency should provide citizens and PRPs with
access to the same technical information about the site throughout the cleanup
process and believes that the NCP provides this access. As required by the
statute, the NCP provides for the establishment and public availability of the
administrative record files for each response action. These files generally
will become available early in the decision-making process and will include
the types of documents mentioned by the commenter. Members of the public are
provided an opportunity and are encouraged to review the documents prior to or
during the comment period. In addition, citizen understanding of complex,
technical issues will be improved if lead agencies and PRPs, where conducting
response actions, produce clear and understandable summaries of technical
documents. EPA intends to work with PRPs in the preparation of summaries of
technical documents for the public to the extent that summaries are not
already included in fact sheets, updates, and the proposed plan. Lead
agencies should provide copies of these summaries in the information
repository and, where appropriate, the administrative record file.
In addition to the administrative record file discussed above, the NCP
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further requires that the lead agency establish an information repository
before field work for the RI begins. Like the administrative record, the
information repository is located at or near the site. This repository should
contain a copy of items made available to the public, including, unlike the
administrative record file, those not directly related to selecting a remedy.
EPA generally provides for reasonable access to documents by making
information repositories convenient to the interested public, in terms of
location, operating hours and copying facilities, and by indexing the
materials. Lead agency staff should complete any necessary reviews of
documents as quickly as possible so they can be released to the public and
placed in the information repository and the administrative record file. The
public should receive notice of the availability of documents through fact
sheets or other mailings.
In response to the comment that citizens should be able to review
contractor reports, EPA stresses that the lead agency creates an
administrative record file containing those documents that form the basis for
the selection of a response action. Reports developed by contractors that are
relevant to response selection will be included in the administrative record
file. EPA is not requiring, however, that all contractor reports be made
available to the public. Contractor reports that are not relevant to response
selection decision-making are not part of the administrative record (see
Subpart I of the NCP for a discussion of the administrative record).
Another commenter asserted that EPA should notify the public of meetings
with PRPs and allow a citizen representative to be present. Related to this
issue, another commenter requested clarification of the provision in the
proposed NCP allowing the lead agency to conduct technical discussions with
PRPs and the public separately from, but contemporaneously with,
negotiation/settlement discussions. One commenter recommended that citizen
advisory committees be created as a part of the Superfund community relations
process to facilitate a partnership between EPA and community representatives.
The rule does allow for technical discussions involving responsible
parties and the public. They are, however, to be held separately from
settlement negotiation discussions in which information on liability of a
party and other enforcement sensitive issues are discussed. Lead agencies
should, however, bring citizens into technical discussions early in the RI/FS
process. Some mechanisms, such as community work groups, task groups and
information committees, have proven successful in bringing together citizens,
local government officials, and PRPs. EPA encourages communities to form work
groups and to keep these work groups informed about lead agency actions. EPA,
however, is not revising the NCP to require the establishment of more formal
groups such as citizen advisory committees. Such committees may not be
necessary or appropriate for every site. Further, if EPA were to establish
formal citizen advisory committees, they may be subject to the Federal
Advisory Committee Act which sets specific restrictions on the composition and
conduct of such committees.
Several commenters indicated that the language in Subpart I on
administrative record, stating that EPA is not required
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start 55 FR 8769
to respond to comments submitted before the public comment period, sends the
wrong message regarding EPA's interest in public participation. The
commenters urged EPA to encourage response to early comments, thereby
improving decision-making. Another commenter asked that the public be
provided not only a summary of the support agency's comments on the proposed
plan but the lead agency's response to those comments as well.
Although EPA agrees that a prompt response to comments is desirable in
most cases, EPA is only requiring a formal response to comments to be prepared
after the close of the public comment period on the proposed plan. EPA is not
requiring that comments received before the public comment period be responded
to before the comment period for several reasons. First, it is likely that
the lead agency would not have enough information to sufficiently respond to
some comments early in the process of investigating and analyzing sites or
prior to receipt and consideration of all public comments. Second, if the NCP
required comments (e.g., PRP volumes of comments and studies) to be responded
to as they were received, site managers could continually be diverted from
their site cleanup tasks to spend time responding to comments. The NCP,
therefore, requires that comments must be responded to only during specific
times in the process. The NCP requires that the lead agency summarize the
comments received during the comment period on the proposed plan and provide
its response to these comments. This document, the "responsiveness summary,"
is part of the record of decision, and is placed in the administrative record
file. Site managers may respond to comments received at other times at their
discretion. However, as discussed in the preamble to Subpart I, EPA has
revised the rule to encourage lead agencies to respond to significant comments
submitted prior to the formal comment period.
Other commenters said there should be additional communication with the
public, such as more public meetings, direct mailings, and an improved
notification system. A commenter suggested that the lead agency should be
required to compile a site mailing list. EPA encourages such additional
communication with the public in order to respond to their information
requests. The lead agency will determine what is the most effective
notification system for a particular site. Therefore, EPA believes that it is
not appropriate or necessary in the NCP to require such activities, e.g., a
site mailing list, at all sites.
Some commenters suggested that the NCP require the lead agency to make
available at public meetings conducted to discuss the proposed plan, those
consultants or lead agency representatives who prepared the RI/FS and selected
the response.
EPA does not agree that it is necessary for the NCP to require at every
site that the consultants who aided in the development of the proposed plan or
RI/FS attend public meetings on the proposed plan. The lead agency is
responsible for conducting such meetings and the presence of consultants is
not always necessary in order for the lead agency to explain the proposed
remedy and the supporting analyses and to respond to questions asked by the
public.
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A series of commenters addressed the specifics of the technical
assistance grant (TAG) program, the timing of TAG awards in the remedial
process, and how TAGs should be implemented. One commenter stated that TAG
should be integrated into the community relations provisions of the NCP.
Another commenter recommended that TAGs be referenced or directly incorporated
in the NCP in order to assist in promoting participation in the TAG program.
A commenter offered specific language to be inserted into the NCP, which would
include stating that EPA would encourage citizens to apply for TAGs.
Specific comments on the TAG program will be addressed in the TAG final
rule. However, EPA does agree that TAGs also should be discussed in the NCP.
Specifically, the availability of TAGs is now referenced in ' 300.430(c) . By
including a reference to TAGs in the NCP. EPA intends to encourage citizens
to apply for TAGs.
Additionally, EPA encourages PRPs to provide grants to communities to
enable them to obtain independent technical assistance as a complement to, and
separate from, the EPA TAG program. EPA can provide information and advice to
PRPs and communities regarding how such PRP grants have been used successfully
at other Superfund sites.
A commenter stated that the cleanup process in general, from the RI/FS
to remedy selection, is hindered by a lack of a free flow of information
between lead agencies and PRPs. Commenters argued that PRPs need increased
opportunity to participate in the decision-making process. They recommended
that the NCP provide an opportunity for PRPs to receive copies of and to
formally comment on all key EPA decision documents, including the work plan,
sampling results, the risk assessment, and the detailed remedial studies. One
commenter contended that allowing PRPs to comment only on the proposed plan
limited PRPs from developing the administrative record in a meaningful way,
violated their due process rights, and was contrary to the intent of CERCLA.
Another commenter suggested that there should be a formal mechanism for PRPs
to participate in the development of the administrative record with regard to
the selection of remedy.
In response to the comments suggesting more PRP involvement, EPA
believes that the NCP provides numerous opportunities for PRP involvement.
When the lead agency identifies PRPs, they are presented with the opportunity
to undertake the remedial investigation and feasibility study and cleanup
under lead agency oversight. If PRPs choose not to undertake these tasks,
they are provided with the same opportunities for involvement in site cleanup
decisions that the general public is afforded. The regulations promulgated
today require that some of the documents specifically requested by some
commenters (sampling results, risk assessments, and others) are placed in the
administrative record file as soon as they are available for public review.
Such documents may be commented on during the comment period on the proposed
plan. The NCP provides PRPs with a full opportunity to comment on key
decision documents, not just the proposed plan, and to participate in the
development of the administrative record. Thus, public involvement
opportunities provided by the NCP are fully consistent with congressional
intent and any due process requirements. Subpart I also includes a discussion
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of the development of the administrative record.
One commenter asserted that states should have discretion to vary the
community relations process, for example, substituting news releases for paid
advertisements to announce the proposed plan, comment periods, and public
meetings; substituting a tape recording for a written transcript of public
meetings; and shortening the public comment period in some cases to less than
30 days.
EPA does not agree that lead agencies should have discretion to vary the
community relations requirements set out in the NCP. In order to ensure
adequate minimum public participation at all sites across the nation, EPA
maintains that the lead agency must
start 55 FR 8770
comply with the community relations requirements specified in the NCP.
Final rule: The following additions are made to proposed
' 300.430(c):
1. The purpose of the community relations plan is described in
300.430 (c) (2) (ii) .
2. A statement on the availability of technical assistance grants (TAGs)
has been added to ' 300.430(c)(2)(iv).
Name: Sections 300 . 415 (m) (2) (ii) , 300 . 430 (f) (3) (i) (C) and
300.435(c)(2)(ii)(C). Length of public comment period.
Existing rule: Section 300.67 requires a minimum 21-calendar day public
comment period on feasibility studies that outline alternative remedial
measures.
Proposed rule: Proposed ' 300.415(n)(2)(ii) (' 300.415(m)(2)(ii) in the final
rule) required a minimum 30-day public comment period on the administrative
record, as appropriate, for time-critical and non-time-critical removal
actions. Proposed
'' 300.430(f)(2)(i)(C) (' 300.430(f)(3)(i)(C) in the final rule) and
300.435(c)(2)(ii)(C) required a minimum 30-calendar day public comment period
on the proposed plan and other documents for remedial actions.
Response to comments: Several commenters requested that the minimum duration
of the public comment period for remedial actions be increased. Most
commenters recommended a 60-day minimum and some recommended at least a 90- or
120-day period. A few commenters requested that the minimum public comment
period for non-time-critical removal actions be increased from 30 to 60 days.
One commenter requested such an increase for time-critical and non-time-
critical removal actions.
Many reasons were given for increasing the minimum comment period,
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including that it would allow more time to review large volumes of technical
information and complex issues and to obtain technical assistance in reviewing
such information. Some commenters noted the importance of the comment period
because it is the only meaningful opportunity to provide input on the proposed
remedial action. One commenter asserted that selection of a remedy typically
represents an expenditure of millions of dollars and that a full airing of the
alternatives with a meaningful opportunity to evaluate and comment on the
alternatives is warranted to avoid the squandering of public and private
resources. Another commenter added that a longer comment period would not
threaten the environment because EPA retains its ability to respond to
imminent threats. One commenter suggested that a comment period of less than
30 days may be adequate for emergency actions or when the community agrees
with the remedy.
There is no question that the public comment period should be long
enough to allow sufficient review of the proposed plan and key documents in
the administrative record file, and should take into account the length and
complexity of the information under review at such time. EPA notes that some
if not most of these lengthy technical documents are placed in the
administrative record file and made available for public review well before
the start of the comment period, thus allowing a longer time for review of key
supporting documents. Also, the NCP does not preclude the lead agency from
extending the period upon request and such requests have been typically
granted. EPA believes, however, that because of the importance of the public
comment period to response selection decision-making, further time for comment
should be explicitly specified in the NCP. Therefore, EPA has revised the
public comment period for remedial actions to state that the minimum comment
period to be provided is 30 days but that this period will be extended an
additional 30 days upon timely request (in order to be "timely," a request
generally must be received within 2 weeks after the initiation of the public
comment period). The lead agency may extend the comment period on its own
initiative when it is appropriate or necessary to do so or announce from the
outset that the comment period will be longer than 30 days. EPA has also
revised the language on non-time-critical removal actions to provide that an
additional 15 days to the public comment period will be granted upon timely
request. EPA believes that a longer (i.e., 30-day) extension for removal
actions is not necessary because the documents involved generally are not as
lengthy or complex as for a remedial action. Any further extensions are
within the discretion of the lead agency. This change is also consistent with
the Superfund management review referenced above, which specifically
recommended extending the comment period for remedial actions an additional 30
days, upon request.
Final rule: The final rule will be revised as follows:
1. Add to ' 300.415(m)(4)(iii): "Upon timely request, the lead agency
will extend the public comment period by a minimum of 15 additional days."
2. Add to '' 300.430(f) (3) (i) (C) and 300.435(c) (2) (ii) (C) : "Upon timely
request, the lead agency will extend the public comment period by a minimum of
30 additional days."
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Name: Section 300.435(c). Community relations during remedial design/remedial
action.
Existing rule: Section 300.67 addresses community relations in general, but
does not include community relations requirements during the RD/RA stage.
Proposed rule: CERCLA section 117(c) requires publication of an explanation
of significant differences (ESD) if the action differs in significant respects
from the final plan. Proposed
300.435(c) provides for revision of the community relations plan prior to
initiation of remedial design if necessary to address new concerns. It also
specifies procedures for publishing an explanation of significant differences
(ESD) from the ROD and for amending a ROD. The lead agency is required to
provide an opportunity for public comment only when it proposes to amend a
ROD.
Response to comments: Many commenters requested the opportunity for increased
public participation throughout the post-ROD period. Several commenters
strongly recommended keeping the public informed about changes and
accomplishments during design and construction of the remedy. Some suggested
that the states should continue to be provided with opportunities for
substantial and meaningful participation through the post-ROD period. Others
stated that the lead agency should be required to seek out and respond to
observations of residents near the site during remedial action. One commenter
recommended that public involvement be mandated in the NCP until final
closure, stating that such action would encourage teamwork and reduce
adversarial relationships and distrust during cleanups.
Some commenters objected to the proposed requirement for revising the
community relations plan because it is not required by statute and will
further slow down the cleanup process. One suggested that press releases will
satisfy information needs of the community.
Some commenters stated that community relations activities during RD/RA
other than those specified should be determined on a site-by-site basis at the
discretion of the lead agency. Such activities should reflect the degree of
public concern communicated through the community interviews and the revision
of the CRP.
Another commenter recommended that a fact sheet be issued or a public
meeting be held prior to completion of
start 55 FR 8771
remedial design, that the information repository should continue to be
maintained and that interviews be conducted when revising the community
relations plan.
EPA agrees that public participation throughout the remedial
design/remedial action (RD/RA) stage of the remedial response is important.
It is EPA's intent to continue to undertake activities during RD/RA that
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involve affected communities and interested parties in actions taken at a site
to ensure that the concerns of interested parties are addressed. The proposed
rule provided for revision to the community relations plan (CRP) during RD/RA
in cases where community concerns are not already addressed by the CRP. The
final rule requires the lead agency to review the CRP prior to the initiation
of the remedial design. This revision is more proactive than the proposed
rule because it ensures that the lead agency will reevaluate at every site the
adequacy of the CRP for the RD/RA phase of response. If further public
involvement activities during RD/RA are not already described in the CRP, the
CRP will be revised so that an appropriate level of public involvement will be
maintained. EPA believes that it is necessary to reassess citizens' concerns
after selection of the remedy in order to evaluate the effectiveness of EPA's
communications efforts to date and to determine whether public involvement
concerns have changed as a result of changes in the community. EPA recognizes
that during the Superfund process, elected officials may change and new people
may move into the area. The review of the CRP at the RD/RA phase will allow
the lead agency to take into account concerns raised by these new members of
the community.
Additionally, in response to comment, EPA has revised the NCP to require
lead agencies to conduct further public involvement activities during RD/RA,
including distributing a fact sheet on the final engineering design to the
community and other interested persons. The fact sheet will enable the lead
agency to inform the public about activities related to the final design,
including the schedule for implementing the remedy, what the site will look
like during operation of the remedy and an explanation, if appropriate, of the
roles of the various government agencies that may be involved in the remedial
action, e.g., EPA, the state or the Corps of Engineers. A fact sheet
generally can contain more information than a press release so it is preferred
as a means of communication with the public. Site contingency plans and any
potential inconveniences that may occur, such as excess traffic or noise,
should also be explained.
EPA is also requiring that a public briefing be provided, as
appropriate, near the site prior to initiation of the remedial action. A
public briefing could address issues such as construction schedules, changes
in traffic patterns, location of monitors, and ways in which the public will
be informed of progress at the site. EPA believes that these types of
activities can keep the community fully informed of activities at the site
throughout remedial design and remedial action.
EPA encourages lead agencies to develop additional public involvement
activities, in response to the specific needs of a community. Activities may
include fact sheets on the status of negotiations with PRPs, continuing to
maintain information repositories, as well as workshops to assist the public
in understanding how the cleanup technology will work.
EPA does not agree that such activities will necessarily lead to
substantial delays at sites. EPA places high value on full and deliberate
public involvement because EPA believes it is important that the public is
aware of what is being done in the community. In addition, the information
received from the public may be helpful in designing and conducting cleanup
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activities and in avoiding misunderstandings that may, in the long term,
disrupt or delay cleanup efforts.
In response to the comment requesting that the NCP specify opportunities
for state involvement after the ROD is signed, the amount of state
participation with respect to an explanation of significant differences (ESD)
is discussed in the next preamble section. State involvement during RD/RA
will be specified in site-specific cooperative agreements or Superfund state
contracts rather than in the NCP (see preamble section below corresponding to
' 300.515(g)).
Final rule: Proposed ' 300.435(c) is revised as follows:
1. Under ' 300.435(c), the lead agency is required to review the CRP
prior to the initiation of remedial design to determine whether the CRP should
be revised to describe further public involvement activities.
2. Section 300.435(c)(3) is added requiring the lead agency after the
completion of final engineering design to distribute a fact sheet and to
provide, as appropriate, a public briefing prior to the initiation of the
remedial action.
Name: Section 300.435(c)(2). Changes to the ROD after its adoption.
Proposed rule: Proposed ' 300.435(c)(2) incorporated the requirements of
section 117(c) of CERCLA that the lead agency publish an explanation of the
significant differences when significant changes in the remedy occur after the
ROD is signed, and the section 117(d) requirement that such publication
include publication in a major local newspaper of general circulation. In
addition, this section distinguishes between an explanation of significant
differences, which announces a significant change in the selected remedy, and
a ROD amendment, which fundamentally alters the remedy selected in the ROD.
Section 122(d)(1)(A) of CERCLA provides that whenever EPA enters into an
agreement under section 122 with any PRP to undertake a remedial action, the
agreement shall be entered as a judicial consent decree. Section 122(d)(2)
requires that the Department of Justice (DOJ) provide the public with an
opportunity to comment on the proposed consent decree at least 30 days prior
to its entry. Where the proposed consent decree fundamentally alters the ROD,
EPA contemplates that it will issue a proposed ROD amendment concurrent with
the proposed consent decree, and that the public comment period provided
pursuant to section 122(d)(2) will satisfy the requirements for additional
public comment for a ROD amendment.
EPA believes that the appropriate threshold for amending a ROD is when a
fundamentally different approach to managing hazardous wastes at a site is
proposed. As a result, EPA has determined that a change in remedial approach
sufficiently significant to require ROD amendment should have the benefit of
consideration of public comments and should, therefore, undergo the same
public and support agency involvement as the original ROD, including the
publication of a proposed plan and a public comment period.
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Response to comments: EPA received several comments requesting clarification
of the different responses to changes in the remedy after the ROD is signed
during the RD/RA process; specifically, commenters wanted clarification of the
distinctions between a significant difference, which requires an ESD but no
public comment, and fundamental change from the ROD, which requires a ROD
amendment with public comment.
A number of commenters addressed the procedures when there are changes
to the ROD after its adoption. Some commented that it is important to seek
start 55 FR 8772
out public input before proposing to amend the ROD because public comments are
of little use after a decision has been made. Others argued that reopening a
final decision for additional public comment can lead to additional delay and
cost in completing remedial actions. A commenter stated that CERCLA does not
require a ROD amendment to be subject to public comment. Several commenters
requested that the lead and support agencies should concur on proposed
significant changes and ROD amendments before proposed changes are announced
to the public. One of these commenters recommended that the lead agency be
required to respond to a support agency's disagreement with a proposed ROD
amendment in the notice of availability and in the new proposed plan.
Many commenters contended that the distinction between significant
difference and ROD amendment was not clear and requested clarification. One
commenter recommended that the public be given the opportunity to comment on
significant changes. Another commenter recommended that PRPs have an
opportunity to comment on proposed significant changes.
One commenter recommended that the preamble to the final NCP state that
the lead agency will reconsider its remedy when new information indicates that
the selected remedy may not be cost-effective or is otherwise inconsistent
with the NCP.
EPA responds to the above comments by clarifying changes to the ROD
after the ROD has been signed. After the ROD is signed, new information may
be generated during the RD/RA process that could affect the remedy selected in
the ROD. Three types of changes can occur: (1) Nonsignificant changes; (2)
significant changes; and (3) fundamental changes. The lead agency must
identify when a remedial action, settlement, or decree differs significantly
from the ROD.
Nonsignificant changes are minor changes that usually arise during
design and construction, when modifications are made to the functional
specifications of the remedy to optimize performance and minimize cost. This
may result in minor changes to the type and/or cost of materials, equipment,
facilities, services and supplies used to implement the remedy. The lead
agency need not prepare an ESD for minor changes. These changes should be
documented in the post-ROD file, such as the RD/RA case file.
Significant changes to a remedy are generally incremental changes to a
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component of a remedy that do not fundamentally alter the overall remedial
approach. For example, the lead agency may determine that the attainment of a
newly promulgated requirement is necessary, based on new scientific evidence,
because the existing ARAR is no longer protective. Where this new requirement
would affect a basic feature of the remedy, such as timing or cost, but not
fundamentally alter the remedy specified in the ROD (i.e., change the selected
technology), the lead agency would need to issue an explanation of significant
differences announcing the change. Another example would be when sampling
during the remedial design phase indicates the need to increase the volume of
waste material to be removed and incinerated by 50 percent, requiring an
increase in cost, in order to meet remediation goals. This increase in the
scope of the action represents a significant change and requires an ESD.
Similarly, the lead agency may decide to use carbon adsorption instead of air
stripping to conduct ground-water treatment. This change requires an ESD to
notify the public of the change; however, the basic pump and treat remedy
remains unaltered and the performance level specified in the ROD will be met
by the new technology, so a ROD amendment is not necessary.
If the action, decree, or settlement fundamentally alters the ROD in
such a manner that the proposed action, with respect to scope, performance, or
cost, is no longer reflective of the selected remedy in the ROD, the lead
agency will propose an amendment to the ROD. For example, the lead agency may
have selected an innovative technology as the waste management approach in the
ROD. Studies conducted during remedial design may subsequently indicate that
the innovative technology will not achieve the remediation goals specified as
protective of human health and the environment in the ROD. The lead agency,
based on this information, may determine that a more conventional technology,
such as thermal destruction, should be used at the site. In this event, the
lead agency will propose to amend the ROD. The public will have a full
opportunity to comment on the proposed amendment. Thus, contrary to the
commenters' suggestion, the final decision to amend is not made until after
consideration of public comment, as in the original ROD.
EPA also disagrees with the commenter who suggested that public comment
should not be provided for ROD amendments because CERCLA does not require it.
This comment apparently is based on the interpretation that once EPA selects
a final remedial plan, any further changes, even those not contemplated in the
proposed plan or ROD and thus never subject to public comment, would need no
public comment. EPA agrees that CERCLA section 117 expressly provides for
public comment only on the proposed plan and provides only a notice
requirement for significant changes. However, EPA disagrees with the
commenter's interpretation that the lack of an explicit requirement in the
statute means that no public comment is necessary for any changes to the ROD.
The public comment on the original proposed plan required under section
117(a) could be rendered meaningless by a revision which is fundamentally
different from the remedies suggested in the proposed or final remedial plan.
EPA does not believe that Congress intended that the critical public
involvement opportunities provided in section 117 could be made irrelevant in
such a manner. Moreover, because ROD amendments are as important a part of
the remedial decision-making process as the selection of the original remedy,
EPA believes that the public comment opportunities on changes to the ROD
should be treated with equal importance.
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One commenter stated that the public should have the opportunity to
comment on the ESD, arguing that to do otherwise would deny PRPs their due
process unless they were allowed to add to the administrative record. EPA
disagrees with this comment.
EPA has attempted to develop an administrative process which balances
the public's continuing need for information about, and input into, post-ROD
remedial action decisions, with the lead agency's need to move forward
expeditiously with design and implementation of the remedy after fundamental
decisions have been made in the ROD. Thus, ' 300.435(c) of the final rule
provides that where EPA plans to make a fundamental alteration in a selected
remedy, EPA is required to modify the ROD, and to follow a public comment
process similar to the development of the original ROD. However, where the
change to the action is "significant" -- such that the public should be
notified of it -- but is not a fundamental alteration of the selected remedy
with respect to "scope, performance, or cost," the lead agency may publish an
ESD without triggering a new round of comment, as provided in ' 300.435(c) and
section 117(c) of CERCLA.
This is not to say that the public is excluded from the administrative
process when ESDs are issued; rather,
start 55 FR 8773
they have notice and a limited opportunity to comment. Specifically, EPA is
required to document the rationale for the changes contained in an ESD, and to
include such rationale in the administrative record for public review,
pursuant to '' 300.435(c) and 300.825(a). Then, if a commenter presents new
information which substantially supports the need for significant changes to
the remedy (as modified by the ESD), the lead agency is required to consider
such comments. Section 300.825(c). EPA believes that these provisions
provide ample opportunities for public participation, and that a separate
comment period for each ESD (plus a period for response to comment) is not
necessary or consistent with the need to take prompt action, especially where
the change is not a fundamental one. It should be noted that, although
Congress provided for a comment period on the proposed plan, it did not
require one for an ESD.
It is also important to note that at the time of an ESD, the public will
already have had an opportunity to comment on the alternative remedial options
for the site (including the recommended remedial option) during the comment
period on the FS and proposed plan; it is at that time that commenters may
bring to EPA's attention fundamental issues concerning the remedial action
that should be taken. When an ESD is issued, after remedy selection, EPA is
simply modifying the remedy to enhance its protectiveness, effectiveness, or
cost; by definition, it is not a "fundamental" reconsideration of the basic
remedy selection decision on which comment was taken. Just as EPA may
initially select a remedy that differs somewhat from those proposed without
triggering a new round of comment each time (indeed, the changes may be a
direct result of the comments), so may EPA issue an ESD that reflects a
nonfundamental change or refinement in the remedy without requiring a separate
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round of comment.
Commenters also requested more information on the procedures for
executing an ESD, specifically on the roles of lead and support agencies.
Commenters also recommended that the lead agency seek the approval of the
support agency before releasing the ESD. When an ESD is issued, the lead
agency should consult with the support agency (unless a SMOA, cooperative
agreement, or Superfund state contract requires concurrence) prior to
notifying the public in a major local newspaper of general circulation. The
lead and support agency will generally reach agreement on the proposed
significant change. If agreement cannot be reached, and dispute resolution
processes are not effective, then the support agency's comments should be
summarized in the ESD and placed in the administrative record files. The
public notice of the ESD will summarize the explanation of significant
differences by identifying the significant changes and the reasons for the
changes. The lead agency will also place the explanation of significant
differences and information supporting the decision in the information
repository and administrative record file. Further information concerning
issuance of ESDs on ROD amendments is available in "EPA's Guidance on
Preparing Superfund Decision Documents," OSWER Directive 9355.3-02, October
1989 (Interim Final).
One commenter requested EPA to remove the institutional bias against
reopening the ROD, especially in the light of new monitoring data developed in
the design phase or in studies on other operable units, that indicate the site
is less hazardous than previously thought. EPA recognizes that new
information may warrant rethinking a remedy selected for a site. EPA has
designed procedures, described in ' 300.435(c), for amending the ROD if it is
warranted by new information.
Final rule: EPA is promulgating the rule as proposed.
Name: Other community relations requirements.
Proposed rule: Section 300.155 is a new section in the proposed NCP outlining
the purpose, applicability and general procedures for establishing community
relations at a site, as well as cross-referencing community relations
components of the removal, RI/FS, and remedial design sections of the
regulations. Sections 300.415, 300.430 and 300.435 govern community relations
procedures for the removal, RI/FS, and remedial design phases, respectively.
Response to comments: Several of those submitting comments requested a
general description of the enforcement community relations process in the
preamble to the proposed NCP.
While the sections cited above and the preceding discussion detail the
processes governing community relations at various stages in a Superfund
cleanup, including an enforcement action, the following discussion is intended
to assist in giving an overview of the role of community relations as it
relates specifically to enforcement actions.
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In response to citizen concerns, EPA has made an effort to foster better
two-way dialogue between communities and those designing and conducting a site
cleanup. EPA believes that responsible and timely communication with the
public is essential both to improving site responses through citizen input,
and to improving the public's understanding of a site response in their
community. Accordingly, EPA feels that community relations during an
enforcement action is an integral part of the process. In fostering community
involvement during enforcement actions, regional community relations
coordinators (CRCs) follow the same steps as they would for Fund-financed
actions: conducting community interviews, developing community relations
plans, sending out public notices periodically and conducting public
information meetings. The lead agency at any site develops a community
relations plan taking into account the concerns of the community. In
enforcement cases, the plan should describe how the lead agency will keep the
public apprised of the nature of the discussion with PRPs. EPA retains
control over developing, writing and implementing these plans at "PRP-lead"
sites, but PRPs can assist in the development of a plan at the discretion of
the regional office.
Community relations activities in the form of meetings with groups of
citizens, local officials and other interested persons in the community, often
occur before the RI/FS special notice is sent (see preamble to the proposed
NCP on special notice and moratoria, 53 FR 51432) . Discussions of PRP
liability and possible settlement terms will generally be reserved for
confidential negotiation sessions, but the lead agency will attempt to explain
these issues in general terms to the public. Lead agencies should bring
citizens into technical discussions early in the RI/FS process, and aid
members of the public seeking to apply for technical assistance grants.
EPA received a comment asking that federal agencies conducting a response
action be granted greater flexibility when implementing public participation
requirements, as long as they meet the overall public participation
obj ectives.
Section 120(a)(2) of CERCLA holds federal agencies to the same NCP
standards and requirements as any other party. In addition, the public
participation requirements in the NCP establish basic minimum public
participation requirements. Exempting federal agencies from, or granting them
discretion in, following specific public participation requirements would run
contrary to Congressional intent to institutionalize certain public
participation activities in response actions and EPA's experience
start 55 FR 8774
concerning what requirements for public involvement are essential. Subpart K
of the NCP will address in greater detail the role of federal agencies other
than EPA in carrying out a response action.
Final rule: See other preamble sections on community relations for
descriptions of changes to the proposed rule.
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ENFORCEMENT
Name: Superfund enforcement program strategy.
Proposed rule: The preamble to the proposed NCP includes a brief discussion
of the 1986 SARA amendments to CERCLA enforcement provisions. This discussion
states that the SARA amendments added provisions "intended to facilitate
responsible party financing of response actions. CERCLA section 122, for
example, provides mechanisms by which settlements between responsible parties
and EPA can be made, and allows for "mixed funding' of response actions, with
both EPA and responsible parties contributing to response costs" (53 FR
51395) .
Response to comments: One commenter stated that EPA should minimize Fund
depletion through less stringent cleanups at many sites in favor of increased
use of administrative orders and penalties to force PRP cleanup wherever
viable PRPs are located.
Since the 1986 amendments were passed, EPA has embarked on a course that
increasingly seeks PRP funding of response actions and relies less on Fund
expenditures. In addition, EPA's recently completed internal management
review of the Superfund program ("A Management Review of the Superfund
Program," June 1989) ranked the increased use of enforcement capabilities to
encourage PRP-funded cleanups as one of EPA's highest priorities. The comment
above reflects a need for clearer articulation of what is already a well-
established EPA policy to emphasize enforcement.
EPA will use the fact and threat of enforcement, encompassing a broad
range of administrative and legal tools, to increase the proportion of
cleanups undertaken by private parties.
Final rule: There is no rule language on this issue.
Name: Special notice and moratoria.
Proposed rule: There is a general discussion of special notice in the
preamble to the proposed NCP and an overview of the Superfund program and
response process (53 FR 51432).
Response to comments: Several of those who submitted comments believe that
the discussion of special notice and moratoria in the preamble to the proposed
NCP provides a good introduction to the Superfund program, but asked for more
specific language articulating EPA's enforcement strategy for the program
clarifying a priority for enforcement responses over Fund-financed responses.
One commenter requested language stating that formal negotiations are not the
only vehicle for reaching a settlement with PRPs, and that informal
negotiations can and do extend beyond the 60-day formal negotiation period if
"sufficient progress has been made."
EPA believes that a clear articulation of its goals for program
enforcement is necessary and appropriate, but that this articulation belongs
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in the form of guidance documents on general policy goals and not as part of
these regulations. The preamble to the proposed NCP discussion of ' 300.430,
special notice and moratoria, already articulates EPA's preference for
enforcement responses clearly: "A fundamental goal of the CERCLA enforcement
program is to facilitate settlements, i.e., agreements securing voluntary
performance or financing of response actions by PRPs" (53 FR 51432). The
discussion also recognizes the important role of informal negotiations:
"'formal' negotiations should not be viewed as the sole vehicle for reaching
settlement....[F]requent interaction between EPA and PRPs, through exchange
and 'informal' discussions may be appropriate outside of the 'formal' special
notice moratorium" (53 FR 51432). The discussion specifies that negotiations
can continue beyond the 60-day negotiations period if EPA receives a "good
faith offer," a stipulation more specific than the broader "sufficient
progress" language proposed by the commenter and reflective of statutory
directives under section 122(e) (2) (b) .
Final rule: There is no rule language on this issue.
Name: Exemptions for federal facilities.
Proposed rule: Section 300.2 outlines the statutory requirement for NCP
revision to reflect changes made to CERCLA by the 1986 SARA amendments.
Section 300.3 describes the NCP as applying to federal agencies and states for
responses governed under CERCLA and in cases of oil discharges and other
hazardous releases. The preamble to the proposed NCP describes the
applicability of the NCP to federal facilities (53 FR 51395-96).
Response to comments: One commenter proposed that a general "grandfather"
clause be added to the proposed NCP exempting federal agencies from complying
with new NCP regulations for actions and studies on federal facilities already
in progress and initiated under preexisting NCP regulations. A related
comment asked that a grandfather clause exempt any party who has initiated
response actions at a site under the provisions of the preexisting NCP. A
commenter argued that any other policy would be "disruptive to environmental
progress . "
EPA disagrees, and believes that the new NCP provisions should take
effect 30 days after promulgation, as provided herein. The commenter's
suggestion would result in a situation where response actions "initiated"
before this rule would be exempt. However, many response actions --
especially remediation of contaminated ground water -- can take years to
complete; it would not be appropriate to exempt from this rule actions that
will continue for long periods of time. EPA did consider the option of making
the rule effective for those "phases" of response actions begun after the
effective date; however, it is difficult to divide response actions into
distinct phases, especially in the case of long-term remedial actions. On the
general issue of whether the new requirements will be burdensome, several
points are worth noting. First, EPA's stated policy has been to use the
proposed NCP revisions as guidance, and in fact, EPA has done so; thus, the
majority of provisions in today's rule are well known. Second, to a large
degree, today's rule implements the SARA statutory requirements, which have
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been in effect since 1986; on-going actions are already required to meet
those requirements.
With regard to the suggestion that generally-applicable NCP requirements
should apply to federal facilities on a different schedule than would apply to
others, EPA notes that CERCLA section 120(a) is very clear in prohibiting
special treatment for federal facilities:
"All guidelines, rules, regulations, and criteria which are applicable
to preliminary assessments . . . , applicable to such facilities under the
National Contingency Plan, applicable to inclusion on the National
Priorities List, or applicable to remedial actions at such facilities
shall also be applicable to facilities which are owned or operated by a
department, agency or instrumentality of the United States in the same
manner and to the same extent as such guidelines, rules, regulations,
and criteria are applicable to other facilities (emphasis added).
EPA will, however, after a notice and comment rulemaking, issue a new
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Subpart K to the NCP that will address some of the special concerns of the
federal facilities, and problems unique to federal facility cleanups.
Final rule: See preamble section on ' 300.3 for revisions to proposed rule.
Name: Sections 300.420, 300.430 and 300.435. Early notification and
involvement.
Proposed rule: Section 300.420 describes the methods, procedures and criteria
used during remedial site evaluation. Section 300.430 describes the specific
tasks and activities of the RI/FS process and selection of remedy, including a
preamble to the proposed NCP discussion section on special notice and
moratoria pursuant to CERCLA section 122(e) that describes how EPA can issue
special notice letters to PRPs in pursuit of a settlement agreement. Section
300.435 describes RD/RA activities, including procedures for public and PRP
notification when remedial actions differ significantly from those outlined in
the ROD.
Response to comments: Several of those who commented believe that the NCP
should explicitly identify opportunities for early PRP notification and
involvement, and agreed that notification should be made to all parties as
soon as practicable after site discovery, both to facilitate settlements and
information gathering, and to help EPA make an informed decision on deferred
listing. One suggested that the proposed NCP state that EPA regional staff
should involve "willing" PRPs in project scoping, resulting in less remedial
alternatives to evaluate. The comment did not specify whether "willing"
referred to settling PRPs or cooperative, nonsettling PRPs, or both. The
comment added a request to include an overall site remediation management plan
as part of the RI/FS in the proposed NCP. Another comment suggested that
introductions to all three sections at issue above should state EPA's
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commitment to issue general and special notice letters to known PRPs before
taking any action at the site. Finally, one comment outlined a revised
process to better involve PRPs in remedial action: PRPs should be notified of
selection of an RI/FS contractor and be given copies (with an opportunity to
comment) of project scoping and work plans, sampling plans and all sampling
results as they become available, a list of ARARs, a list of potential
alternatives for the FS, and copies of the risk assessment.
Section 300.415(a)(2) adds language articulating EPA's commitment to
contact known PRPs "to the extent practicable" in order to "determine whether
they can and will perform the necessary removal action" (53 FR 51500). EPA
believes that it must preserve its discretion regarding timing of PRP
notification provided in the statute to protect its enforcement and response
flexibility. The preamble to the proposed NCP already reflects EPA's
commitment to early notification and early PRP involvement at a site in the
discussion of ' 300.430: "EPA believes that settlements are most likely to
occur and will be most effective when EPA interacts frequently and early in
the process with PRPs" (53 FR 51432). Specific regulations would restrict EPA
discretion and the use of incentives in enforcement activities to bring about
a settlement. Finally, the statute already provides PRPs with an opportunity
for further involvement in the RI/FS process by entering into an agreement
with EPA and conducting the RI/FS and/or the response action.
Final rule: EPA is promulgating the rule as proposed.
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SUBPART F — STATE INVOLVEMENT IN HAZARDOUS SUBSTANCE
RESPONSE
Subpart F is completely new. It combines concepts described in separate
sections in the existing NCP on state role and involvement into one subpart,
which codifies all regulatory requirements for state participation and
involvement in CERCLA-authorized response actions. It also includes the
minimum requirements EPA will follow to ensure that all states are provided an
opportunity for "substantial and meaningful" involvement in the initiation,
development, and selection of remedial actions as mandated by CERCLA section
121(f)(1). Following are summaries of major comments on the proposed Subpart
F and EPA's responses.
Name: Section 300.5 Definitions of cooperative agreement and Superfund state
contract.
Proposed rule: The proposed NCP, ' 300.5, includes definitions of two terms
not previously defined: Cooperative agreement and Superfund state contract.
Cooperative agreement means a federal assistance agreement in which
substantial federal involvement is anticipated during the project. Superfund
state contract means a joint agreement between EPA and a state that documents
any required cost share and assurances necessary to conduct a response action.
Response to comments: Some comments were received on the definition of
cooperative agreement. One commenter argued that the definition should be
revised to recognize the availability of state cooperative agreements under
section 311 of the Clean Water Act and the Coast Guard's authority to enter
into such agreements under the Clean Water Act and CERCLA section 104(d).
Another commenter stated that the recipient of a cooperative agreement should
already have been determined to be qualified and responsible to conduct the
response actions described in the cooperative agreement without substantial
EPA involvement. "Substantial EPA involvement" was also disputed by another
commenter who suggested that cooperative agreement be defined as a federal
assistance agreement which authorizes the performance of federal duties and
responsibilities within a prescribed scope.
Cooperative agreements under CERCLA are subject to the Federal Grant and
Cooperative Act, 31 U.S.C. 6301-8, which defines cooperative agreement as a
legal instrument in which substantial federal involvement is anticipated.
This definition applies as well to CERCLA cooperative agreements. Moreover,
EPA believes that there will be substantial federal involvement or oversight
under most CERCLA cooperative agreements.
In 1988, the Office of Management and Budget revised Circular-A102 and
established a government-wide "common rule" for all federal agencies which
prescribed the administrative requirements for federal assistance to states,
local governments, and federally recognized Indian tribes. EPA implemented
this common rule through 40 CFR Part 31, which was developed at the time the
NCP was proposed. As a supplement to 40 CFR Part 31, EPA also promulgated
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separate implementing regulations for Superfund, 40 CFR Part 35 Subpart O,
Cooperative Agreements and Superfund state contracts for Superfund Response
Actions. Either a cooperative agreement or a Superfund state contract must be
used to obtain the necessary CERCLA section 104 assurances.
The definitions of cooperative agreement and Superfund state contract in
40 CFR Part 35 Subpart O are somewhat more detailed than the definitions for
the same terms in the proposed NCP. The final NCP incorporates the 40 CFR
Part 35 Subpart O definitions. The final NCP also cross-references Parts 31
and 35 Subpart O where appropriate. EPA acknowledges the United States Coast
Guard's authority to enter into cooperative agreements under section 311 of
the Clean Water Act and that E.O. 12580 provides the Coast Guard and other
start 55 FR 8776
federal agencies with certain authorities under CERCLA. However, EPA believes
that it is not appropriate to include this in the definition of cooperative
agreement since the definition of this term is already prescribed by the
Federal Grant and Cooperative Agreement Act of 1977.
Final rule: 1. Proposed definitions in ' 300.5 are revised as follows:
"Cooperative agreement" is a legal instrument EPA uses to transfer
money, property, services, or anything of value to a recipient to
accomplish a public purpose in which substantial EPA involvement is
anticipated during the performance of the project.
"Superfund state contract" means a joint, legally binding agreement
between EPA and a state to obtain the necessary assurances before a
federal-lead remedial action can begin at a site. In the case of a
political subdivision-lead remedial response, a three-party Superfund
state contract among EPA, the state, and political subdivision thereof,
is required before a political subdivision takes the lead for any phase
of remedial response to ensure state involvement pursuant to section
121(f)(1) of CERCLA. The Superfund state contract may be amended to
provide the state's CERCLA section 104 assurances before a political
subdivision can take the lead for remedial action.
2. Cross-references to the relevant portions of 40 CFR Part 31 and Part
35, Subpart O, have been added to the NCP in the following sections of Subpart
F: 300.500(b), 300.505(c), 300.510(a), 3 0 0.510(b)(2), 300.515(a), 300.515(g),
and 300.525(a).
Name: Section 300.500. General. Section 300.505. EPA/state Superfund
memorandum of agreement (SMOA). Section 300.515(h). Requirements for state
involvement in absence of SMOA.
Proposed rule: Proposed ' 300.505 established general guidelines for
developing and implementing a SMOA between EPA and a state (see preamble
discussion in 53 FR 51455). A SMOA is an operating agreement that details how
EPA and a state shall conduct business for remediating sites within that
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state. This section further described the ways in which a SMOA can provide a
framework for the EPA/state partnership and how a SMOA may be used to
establish the nature and extent of EPA/state interaction during response
activities, to define the roles and responsibilities of each agency, and to
describe the general requirements for EPA oversight. Proposed ' 300.505(a)
also specified that a SMOA is not required unless a state requests to be
designated as a lead agency for non-Fund-financed response actions at NPL
sites, or to recommend a remedy for EPA concurrence for Fund-financed response
actions. As proposed, the regulation would have established a SMOA as a
prerequisite for both types of state involvement.
Section 300.515(h) described categories of requirements for state
involvement in the absence of a SMOA, or in the event that the SMOA did not
address all the major requirements for state involvement in remedial and
enforcement responses. This section required that, in the absence of a SMOA,
the support agency was responsible for providing the lead agency with
potential ARARs and TBCs by the time site characterization data were
available. The potential ARARs shall be communicated in writing within 30
working days of the lead agency's request. After the initial screening of
alternatives, and before comparative analyses are conducted, the support
agency has the opportunity to communicate additional requirements that are
relevant and appropriate within 30 working days of receiving the request.
Finally, the lead and support agencies shall remain in consultation so that
ARARs and TBCs are updated, as necessary, until the ROD is signed.
Response to comments: 1. SMOA as prerequisite. Two commenters agreed that a
SMOA should be required if a state requests to be designated as lead agency
for non-Fund-financed actions at NPL sites or to recommend a remedy for EPA
concurrence for Fund-financed actions. One of these commenters stated that,
if EPA requires a state to sign a SMOA for these purposes, EPA must reach
greement with the state on the SMOA within one year. Other commenters
objected to linking the ability of a state to recommend a remedy for Fund-
financed response to the existence of a SMOA. One commenter stated that
delegation of program components should not be linked to the existence of a
SMOA. Several commenters expressed the view that such requirements undermine
the goal of a true partnership between EPA and the state. Commenters noted
several concerns regarding this subject.
They argued that CERCLA section 121(f) mandates that EPA provide states
with meaningful and substantial involvement in implementing Superfund. Since
the SMOA is a voluntary, non-legally binding document, commenters asserted
that the lack of a SMOA should not prevent states from participating
meaningfully in the program. Commenters further argued that the existence of
a SMOA will not improve the ability of states to select and recommend a
remedy, particularly for those states already assuming lead roles. Degree of
involvement should be a function of interest and ability, not of the existence
of a SMOA at a particular moment in time. One commenter stressed that
requiring a state to have a SMOA in order to be a contributing member in the
The term "partnership" does not imply that EPA and a state enter into a
formal legal partnership agreement.
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Superfund program could create a serious problem for a state, particularly if
the region declines to enter into a SMOA.
Several commenters stressed that a SMOA should not be a prerequisite for
a state to recommend a remedy for EPA concurrence at a Fund-financed site. In
such cases, a cooperative agreement would already be in existence and would
address many of the issues otherwise contained in a SMOA. Furthermore, as
lead agency, the state will have extensively analyzed the response needs and
will be well qualified to select and recommend a remedy.
Many commenters mentioned that EPA can accept, reject, or modify any
state recommendation for Fund-financed actions. This final authority over the
state's remedy recommendation makes having a SMOA as a prerequisite
unnecessary. Finally, several commenters asserted that EPA's decision to
concur or not concur with the state's recommended remedy should be based on
whether the recommendation is sound and satisfies the nine remedy selection
criteria, not on the existence of a SMOA.
Another concern expressed by commenters regarding concurrence is one of
timing. Several commenters were worried that the process of negotiating a
SMOA can take a significant amount of time and could delay designation of
sites for state-lead cleanup in the meantime. States that have demonstrated
experience in Superfund implementation should not be restricted from
recommending a remedy until negotiations are completed and a SMOA is in place.
Commenters generally did not agree with requiring a SMOA as a
prerequisite for state lead during non-Fund-financed response actions at NPL
sites for two reasons. First, commenters asserted that lead agency
designation should be based on a state's ability to manage the necessary
response activities, not on the existence of a SMOA. Second, commenters
stated that if the SMOA was required for the state to be designated the lead
agency, some states could be denied the opportunity to
start 55 FR 8777
assume the lead if regions declined to enter into SMOAs. A few commenters
mentioned that so far it appears that EPA has not placed a priority on
finalizing a SMOA even when the state has initiated the drafting and
development process. A few commenters were concerned that imposing a
prerequisite for non-Fund-financed state leads may pose a hardship for smaller
states, which desire only limited participation in lead activities. The
commenters point out that a SMOA does not contain any provisions that could
not otherwise be provided in a site-specific cooperative agreement.
EPA agrees with commenters that the SMOA should not be a prerequisite
for certain program activities, and has modified the final rule accordingly.
EPA will not require states to negotiate SMOAs in order to recommend remedies
for EPA concurrence at Fund-financed sites, or to be designated as lead
agencies for non-Fund-financed actions at NPL sites. A SMOA is not the
appropriate mechanism to designate sites for which a state will recommend a
remedy. EPA and a state will agree in a cooperative agreement that the state
may recommend a remedy at a site for which the state has been designated as
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the lead agency. EPA has decided to remove the SMOA as a prerequisite
for these activities in order to emphasize the primary purpose of SMOAs as
voluntary agreements through which EPA and a state can agree on communication
and coordination processes throughout the remedial process. This approach
will be more conducive to expanding the EPA/state partnership in the Superfund
program. EPA will enter into SMOA discussions if requested by a state.
EPA agrees that the absence of a SMOA should not in itself limit the
level of participation by a state in the Superfund program, nor does the
existence of a SMOA improve the ability of a state to participate more fully
in the program. A SMOA can, however, act as an effective management tool and
lead to a more effective EPA/state partnership through better defining roles
and distributing responsibilities according to each party's resources and
experience. Thus, SMOAs may contribute to more consistent program
implementation nationwide, while providing EPA and states flexibility in
conducting certain program activities. Lead designations for both Fund-
financed and non-Fund-financed sites should be determined based on interest,
capability, and available resources.
2. ARAR review times. Several commenters supported the 30-day deadline
for support agencies to identify ARARs, which applies to states without a
SMOA. In addition, a few commenters stressed that timely ARAR identification
is important for sites in states with and without a SMOA to achieve rapid
response actions, and suggested that states with a SMOA also be subject to the
30-day deadline. One commenter specifically stated that review times set
forth in the proposed rule do not provide a sufficient amount of time to
identify and communicate ARARs to the lead agency. A minimum of 30 days is
necessary to give support agencies the opportunity to review the information
located in various documents adequately.
EPA agrees that timely ARAR identification is important in expediting
response actions. The 30-working day timeframe in ' 300.515(h)(2)
generally will apply to all lead and support agencies in the absence of a
SMOA. However, EPA believes it is also important to allow EPA and states
flexibility to agree on site-specific ARAR identification timeframes. A SMOA
may reference the language of 300.515(h)(2), or specify a mutually agreed upon
alternative; however, to be legally binding, any alternative timeframes
negotiated in a SMOA must be documented in site-specific agreements.
3. Impact of SMOA on response agreements. Several commenters expressed
concern that entering into a SMOA could impact agreements already in place to
which the state and/or EPA is a party. In particular, this conflict could
raise issues of due process, especially when existing agreements involve
potentially responsible parties. To eliminate the possibility of this
problem, commenters recommended that a provision be added to ' 300.505 to
ensure that a SMOA will not impact existing enforcement orders, consent
orders, or cooperative agreements. EPA agrees with the commenters and will
revise the NCP accordingly. The SMOA is a non-binding document, and therefore
cannot alter existing legally binding response agreements.
4. Removal coordination and SMOAs. See preamble discussion to
300.415 on state involvement in removal actions.
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Final rule: Proposed ' 300.505 is revised as follows:
1. Language has been reordered and modified to better describe the
purpose and contents of SMOAs.
2. The final rule states in ' 300.505(a) that EPA shall enter into SMOA
discussions if requested by a state.
3. Language in the proposed rule making the SMOA a prerequisite in order
for a state to recommend a remedy for EPA concurrence at a Fund-financed site
or to be designated as the lead agency at a non-Fund-financed NPL site has
been deleted.
4. Proposed ' 300.505(a)(4)(i)(renumbered as final
300.505(a)(3)) is revised to state that review times established in a SMOA
must also be documented in a site-specific cooperative agreement or Superfund
state contract to be legally binding.
5. Proposed ' 300.505(a)(4)(ii)(renumbered as final
300.505(c)) has been revised to state that site-specific agreements entered
into pursuant to CERCLA section 104(d)(1) shall be developed in accordance
with 40 CFR Part 35 Subpart O and that the SMOA does not supersede any site-
specific legal agreements.
6. A new ' 300.505(d)(2)(viii) has been included to add other CERCLA
implementation activity discussions to the SMOA process.
7. Language is added to 300.515(d)(2) stating that even though
alternative timeframes for ARAR identification may be established in the SMOA,
such timeframes must also be documented in a site-specific agreement to be
binding.
8. In final rule '' 300.5 (definition of "SMOA"), 300.500(a),
300.505(a)(1), (a)(3) and (d)(1), the word "removal" is being added before the
word "pre-remedial" (see preamble discussion on
300.415, "State involvement in removal actions").
9. Language on advisories, criteria or guidance in
300.505(d)(2)(iii) has been modified (see preamble section on TBCs).
Name: Sections 300.510(c)(1) and (c)(2) and (e). State assurances
operation and maintenance and waste capacity.
Existing rule: 1985 NCP ' 300.68(b)(2) provided that states must have met the
requirements of CERCLA section 104(c)(3) prior to initiation of a Fund-
financed remedial action. CERCLA section 104(c)(3)(A) required a state to
assure all future maintenance of the remedial action for the expected life of
such action. CERCLA section 104(c)(3)(C) provided that the state would pay or
assure payment of 10 percent of the cost of the remedial action, including all
future maintenance.
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Proposed rule: Proposed ' 300.510(c)(1) restated the requirements of the 1985
NCP (53 FR 51455-56). It indicated that, pursuant to CERCLA section 104(c),
the state must provide assurance, prior to the remedial action, that it will
assume responsibility for operation and maintenance (O&M) of
start 55 FR 8778
the implemented remedial action for the expected life of such action.
Proposed ' 300.510(c)(2) stated that EPA may share, for up to one year, in the
cost of operation of the remedial action to ensure that the remedy is
operational and functional. Proposed
300.435(f) provided, pursuant to CERCLA section 104(c)(6), that EPA will
fund for up to 10 years measures to restore ground or surface water quality.
Proposed ' 300.510(e) described requirements for states providing a waste
capacity assurance.
Response to comments: Several state commenters argued that CERCLA section
104(c)(3)(C) requires that 90 (or, in some cases, 50) percent of the cost of
O&M will be federally funded. Some of the commenters also cite CERCLA section
104(c)(7), which refers to federal funding of O&M pursuant to CERCLA sections
104(c)(3)(i) and (6) and S.Rep. No. 96-848(198 0). One commenter claimed that
requiring a state to fund O&M costs entirely biases EPA's selection process to
favor remedies that are less permanent and less effective, by minimizing
short-term expenditures at the expense of greater state-funded O&M. Another
commented that states have agreed to operation and maintenance of remedies.
EPA has followed a general policy of requiring states to assure the
payment of operation and maintenance costs for Fund-financed remedial actions.
Operation and maintenance costs are generally identified in the ROD and
remedial design so that states have an opportunity to comment and recommend
revisions to such costs. This policy is consistent with section 104(c) (3) of
CERCLA, which provides that Fund-financed response actions may not take place
until "the state assure[s] all future maintenance of the removal and remedial
actions provided for the expected life of such actions as determined by the
President...." EPA further believes that Congress has implicitly accepted
this policy by providing in CERCLA section 104(c)(6) that a certain class of
activities, namely those to operate and maintain treatment and other measures
necessary to restore surface or ground water for up to 10 years, are remedial
action and, therefore, are subject to the general 90/10 or 50/50 cost share
requirements. The statute goes on to provide that activities to maintain the
effectiveness of those restoration measures, once protective levels are
achieved or up to 10 years, whichever is earlier, are to be considered O&M
(for which the state pays 100 percent under a long-standing policy) (see
preamble discussion on ' 300.435(f)).
CERCLA section 104(c)(3)(A) provides that "the state will assure all
future maintenance of the removal and remedial action provided [in section
104] for the expected life of such actions as determined by the President"
(emphasis added). EPA believes that this language places this responsibility
for the operation and maintenance of response actions -- including the funding
aspect -- on the states. Indeed, Congress implicitly acknowledged this by
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carving out only a limited exception from O&M in CERCLA section 104(c) (6) . As
the House Committee on Public Works and Transportation noted in a discussion
of the precursor to section 104(c)(6), "...ground or surface water cleanup
will be completed as part of the remedial action, and not be left to operation
and maintenance activities which must be funded by a state." H.Rep. 253, 99th
Cong. 1st Sess., Part 5 at 10 (1985) (emphasis added). In addition, although
a bill to require EPA to pay a cost share for O&M was considered during the
SARA reauthorization process, it was not reported out of the 98th Congress.
(See H. Rep. 890, 98th Cong., 2nd Sess., Part 1 at 4, 445 (1984), Report of
the House Committee on Energy and Commerce.)
In addition, as noted under ' 300.430(a)(1)(ii)(D), institutional
controls may be required to provide for the protectiveness of human health and
such institutional controls have a valid role in the remediation of a site
when active treatment of a site is not practicable. Where institutional
controls are employed as part of a response action, care must be taken to
ensure that such controls are reliable and will remain in place. Therefore,
when appropriate, as part of the O&M assurance required by CERCLA section
104(c)(3) and ' 300.510(c) of this regulation, the state must assure that any
institutional controls implemented as part of a remedial action at a site are
in place, reliable, and will remain in place after the initiation of O&M. The
final rule has been changed to reflect the need to maintain institutional
controls when appropriate.
Further, the experience of the Superfund program has been that EPA's
selection process does not favor remedies that are less permanent and less
effective, by minimizing short-term expenditures at the expense of greater
state-funded O&M. On the contrary, current data reveal that the trend has
been toward the use of more permanent technologies. CERCLA section 121(b) (1)
requires that EPA select a remedial action that is protective of human health
and the environment, is cost-effective, and utilizes permanent technologies to
the maximum extent practicable. In order to formulate a more consistent
approach in selecting remedies at sites, nine selection criteria are used (see
300.430). A remedy is not selected based on cost share alone, rather the
selection of remedy process is based on a balancing approach of the nine
criteria. In fact, EPA has modified the proposed approach to encourage
selection of treatment alternatives by emphasizing the criteria of long-term
effectiveness and permanence and reduction of toxicity, mobility, or volume
through treatment in the final rule (see ' 300.430(f)(1)(ii)(E)).
In another change in this section, the language in
300.510(e) describing the requirements for providing the waste capacity
assurance has been revised to codify language from CERCLA section 104(c)(9)
and to reflect the passage of the October 17, 1989 date for applicability of
this assurance under CERCLA section 104(c)(9). EPA generally will use the
following to determine the adequacy of the state's assurance: (1) the plan
submitted to EPA documenting the waste capacity availability, (2) the state's
written commitment to implement the plan, and (3) the state's written
commitment to implement any additional measures EPA deems necessary to provide
for adequate waste capacity (see Assurance of Hazardous Waste Capacity
Guidance, OSWER Directive No. 9010.00 (December 1988) and OSWER Directive No.
9010.00a (October 1989)).
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Final rule: 1. EPA has revised ' 300.510(c)(1) to state that any
institutional controls associated with response actions are a part of the
required CERCLA section 104(c) assurances.
2. EPA has revised ' 300.510(e) to codify language in CERCLA section
104(c)(9) and to reflect the passage of the October 17, 1989 date for
applicability of the waste capacity assurance. Also, the rule notes that the
issue of whether or not Indian tribes are states for purposes of CERCLA
section 104(c)(9) has not yet been decided by EPA.
Name: Section 300.510(f). State assurances - acquisition of real property.
Proposed rule: Section 300.510(f) proposed that if an interest in real
property was to be acquired in order to conduct a response action, as a
general rule, the state in which the property was located must have agreed to
acquire and
start 55 FR 8779
hold the necessary property interest. If it was necessary for the United
States to acquire the interest in property to permit implementation of the
response, the state must have agreed to accept transfer of the acquired
interest on or before the completion of the response action.
Response to comments: Several commenters contended that CERCLA section
104(j)(2) provides that a state is required to assure that it will accept
transfer of the interest following completion of the remedial action. They
argue that states do not have to accept title to property until the remedial
response is completed, not earlier, and that the determination of whether such
property must be acquired does not lie solely with EPA, but must be made in
consultation with the affected state. The commenters also object to the
proposed rule's application to "response actions" instead of "remedial
actions" as provided by CERCLA section 104(j)(2) because EPA does not have the
authority to force a state to accept title to contaminated property after a
removal action. Some commenters suggest that other mechanisms to implement
response actions, such as voluntary consent, search warrants or court orders,
should be used to implement response actions.
EPA agrees that other mechanisms such as voluntary consent, search
warrants, and court orders may be used to implement response actions.
However, in some circumstances it may be necessary to acquire an interest in
real property for implementation of the response action. As stated in the
proposed rule, the state in which the property is located must agree to
acquire and hold the necessary property interest.
If the state intends to acquire property directly, but lacks authority
to condemn or otherwise acquire it or is unable to do so in an expeditious
manner, it may be necessary for the United States to acquire the interest in
the property to permit implementation of the response. In such instances, the
state must accept transfer of the acquired interest on or before completion of
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the response action. EPA would prefer that a state accept transfer of the
acquired interest prior to completion of the response action. Of course, the
state may pass title to its interest to another entity such as a political
subdivision to hold, as the state deems appropriate. While ownership of such
interest would not result in CERCLA liability pursuant to CERCLA section
104(j)(3), EPA understands that states are concerned about common law
liability that could result from ownership (e.g., arising from injuries to
persons coming on the property) and that they would prefer not to take title
to such property until completion of the response action. EPA believes that
it is not going beyond the statutory language to require a state to accept
title "on or before" completion of the response action; the section merely
gives the states the option to accept title prior to completion of the
response action.
Although Indian tribes are not required to provide the CERCLA section
104(c) assurances, federally recognized Indian tribes are not exempt from
providing the CERCLA section 104(j) assurance. However, EPA will consider, on
a case-by-case basis, what assurances are necessary where there are legal
barriers to a tribe's taking title to property rather than having it held in
trust for the tribe by the United States.
Final rule: EPA is revising ' 300.510(f) to state that the state must also
accept transfer of any interest in acquired property that is needed to ensure
the reliability of institutional controls restricting use of that property
(see discussion above on
' 300.510 (c) (1) ) .
Name: Section 300.515(a). Requirements for state involvement in remedial and
enforcement response.
Proposed rule: Proposed ' 300.515(a)(1) stated that EPA would designate a
state agency as the lead agency for a response action on the basis of whether
or not it had "the capability to undertake such action." Language in the
preamble to the proposed NCP (53 FR 51456) stated that EPA was currently
considering more specific criteria, including: Overall expertise, legal
authorities, administrative and contracting capability, financial management
systems, site complexity, availability of site-specific resources, past
federal or state actions at the site, and past state cleanup activities.
Proposed ' 300.515(a)(2) stated that for EPA-lead Fund-financed remedial
planning activities, the state agency acceptance of the support agency role
during an EPA-lead response shall be documented in a letter or a SMOA.
Section 300.515(a)(3) proposed that site-specific agreements were
generally unnecessary for non-Fund-financed response actions unless a state
intended to later seek credit for its actions.
Response to comments: 1. Section 300.515(a)(1). Commenters stated that the
criteria stated in the proposed preamble should be revised to include: Desire
of the state to do the work, minimum legal ability to issue and enforce
orders, a history of state involvement with federal Superfund activities in
the state, and an ability to demonstrate adequate resources, including
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experienced personnel.
Criteria for lead agency designation were suggested by EPA in the
preamble to the proposed rule (53 CFR 51394) but were not proposed as
regulatory requirements. EPA continues to believe it appropriate to suggest,
rather than require, that these criteria, along with the criteria suggested by
the commenters, be considered during EPA and state discussions on designating
a lead agency. Since conditions may differ among sites, EPA prefers to decide
upon lead agency status by entering into separate discussions with the state
for each response. If the state is chosen as the lead agency, 40 CFR Part 35
Subpart O contains the appropriate regulations regarding criteria for
eligibility and award of funding for state involvement in Superfund response
actions. Therefore, criteria for designating a lead agency have not been
added to today's rule. A cross-reference to Subpart O has been added in
300.515 (a) .
Another comment stated that regulations governing Fund-financed response
actions are silent on whether or not states are allowed to perform enforcement
response activities the commenter contended were clearly allowed under CERCLA
section 104. The comment proposed adding language to ' 300.515(a)(2)
clarifying that states are allowed to perform enforcement response activities.
EPA has modified ' 300.515(e)(2)(i) to explicitly acknowledge the
authority of states to conduct response actions at NPL sites under state law.
The language specifies that a state will prepare the ROD (i.e., select the
remedy), and may seek EPA's concurrence for non-Fund-financed state-lead
enforcement actions. Such actions are conducted under authority of state law,
not CERCLA. Additionally, revised ' 300.505(b)(2)(iv) describes enforcement
activities that may be conducted by states.
2. Section 300.515(a)(2). One commenter stated that the NCP should also
permit support agency acceptance to be documented through a cooperative
agreement. EPA agrees that state acceptance of the support agency role may
also be documented in a cooperative agreement. EPA allows state's to enter
into support agency cooperative agreements to defray the cost of their
participation in EPA-lead response, pursuant to 40 CFR Part 35 Subpart O. The
support agency cooperative agreement is the most appropriate place to document
the
start 55 FR 8780
state's acceptance of the support agency role.
3. Section 300.515(a)(3). Since EPA has decided to not require the
signing of a SMOA for specific state involvement activities, e.g.,
recommending a remedy to EPA, the language in this section needs to clearly
define when a cooperative agreement may be signed. In all cases, EPA may
enter into a cooperative agreement only at Fund-financed sites unless a state
intends to seek credit pursuant to ' 300.515. As defined at 40 CFR Part 35
Subpart O, cooperative agreements are intended to implement CERCLA-funded
response and should not be used to aid cleanup at non-Fund-financed sites.
Final rule: 1. A statement has been added at 300.515(a)(1) to clarify that 40
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CFR Part 35 Subpart O contains further information regarding state involvement
in response.
2. Section 300.515(a)(2) is revised to state that the state may document
its acceptance of the support agency role in a letter, SMOA, or cooperative
agreement.
3. Language in ' 300.515(a)(3) is changed to clarify that cooperative
agreements and Superfund state contracts are only appropriate for non-Fund-
financed actions if a state intends to seek credit under ' 300.510.
Name: Section 300.515(b). Indian tribe involvement during response.
Proposed rule: EPA proposed to provide for interaction with federally
recognized Indian tribes whenever a CERCLA site was within Indian
jurisdiction. As stated in proposed ' 300.515(b), federally recognized Indian
tribes generally may have the same roles and responsibilities under the NCP as
do states. Indian tribes may be authorized to take the lead role for Fund-
financed response activities through a cooperative agreement based on the
following criteria: (1) the Indian tribe is federally recognized; (2) the
tribe currently performs governmental functions to promote the health, safety,
and welfare of its population or environment; (3) the tribe demonstrates the
ability to carry out the necessary response actions according to the
priorities and criteria established by the NCP; (4) the tribe can demonstrate
that the necessary actions are within the scope of its jurisdiction; and (5)
the tribe can demonstrate a reasonable ability to effectively administer a
cooperative agreement.
Response to comments: Several commenters expressed concern that the criteria
used to judge states' ability to be a lead agency seem to be different from
the criteria used to judge the ability of Indian tribes to fulfill the same
role. The requirement that tribes establish jurisdictional authority is not
required of states, and has not been consistently applied to states in the
past. Several commenters asserted that this is "blatant discrimination" and
undermines EPA's efforts to work effectively with Indian tribes. Many
commenters requested that EPA address the apparent disparity between criteria
applied to states and Indian tribes.
A few commenters were also concerned about the criteria requiring Indian
tribes to be federally recognized in order to undertake the lead role and
identified a need to clarify which agency has the authority to govern cleanup
activities at sites within the jurisdiction of an Indian tribe that is not
federally recognized. Similarly, commenters were concerned about how EPA
expects to resolve hazardous substance releases from sites on Indian land when
the release extends beyond the boundary of the reservation. One commenter
requested clarification about whether EPA will allow a state agency to work
with these tribal councils under two-party agreements.
In response, EPA proposed criteria in ' 300.515(b) for evaluating
whether Indian tribes had the capability to take the lead for Fund-financed
response activities through a cooperative agreement. After reconsidering the
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criteria based on public comment, EPA believes that a distinction should be
made in the final rule between criteria for Indian tribes to be treated
substantially the same as states and for the eligibility of Indian tribal
governments to receive funding, which is described in 40 CFR Part 35 Subpart
O, for involvement through a Superfund cooperative agreement.
For an Indian tribe to assume the same responsibility as a state in
Superfund response actions, the Indian tribe must be federally recognized and
must currently perform governmental functions to promote the health, safety,
and welfare of its population or environment. In addition, the tribe must
have jurisdiction over the site at which response is contemplated, including
pre-remedial activities. A similar jurisdictional requirement was not
considered to be necessary for states whose jurisdiction clearly covers the
entire state. However, the extent of Indian tribal jurisdiction may be less
clear. A determination of whether a tribe has jurisdiction over a site should
be made by EPA based on documentation submitted by the governing body of an
Indian tribe. However, by making a determination that an Indian tribal
government has jurisdiction for purpose of CERCLA response, EPA is not making
a determination regarding jurisdiction for any other purpose.
When a hazardous substance release affects lands both within and beyond
the boundaries of lands within the jurisdiction of an Indian tribal
government, state participation is necessary. EPA will encourage coordination
between states and Indian tribes when releases originate in the jurisdiction
of one and affect the other. There is nothing to prohibit the tribe and state
from entering into a two-party agreement to identify roles and
responsibilities. The region will evaluate requests for lead agency
designation to undertake response at such sites on a case-by-case basis in
consultation with the affected governing body of the tribe and state.
Federal-lead may be appropriate in such situations. A three-party Memorandum
of Understanding (MOU) among EPA, the state, and governing body of the Indian
tribe is recommended to define and coordinate roles, and ensure compliance
with the requirements of section 121 of CERCLA for response activities prior
to remedial action.
A federally recognized Indian tribe can apply for Fund monies through a
Superfund cooperative agreement to defray the cost of its participation as a
lead or support agency (the eligibility criteria to receive funding under a
cooperative agreement are discussed at 40 CFR Part 35 Subpart O).
Final rule: The criteria in ' 300.515(b) are modified and renumbered to
enable an Indian tribe to assume the same responsibility as a state in
Superfund response actions, if the tribe is federally recognized and currently
performs governmental functions to promote the health, safety, and welfare of
its population or environment. The tribe must also have jurisdiction over the
site at which response is contemplated.
Name: Sections 300.425(e)(2), 300.515(c)(2) and (c)(3). State involvement in
PA/SI and NPL process. Section 300.515(h)(3). State review of EPA-lead
documents.
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Proposed rule: Proposed ' 300.515(c)(2) provided that states have a minimum
of 20 calendar days and a maximum of 30 calendar days to review releases to be
proposed to be listed on the NPL. Sections 300.425(e) (2) and 300.515(c) (3)
provided the same minimum/maximum timeframes for states to review notices of
intent to delete releases from the NPL. Section 300.515(h)(3) provided, in
the absence of a SMOA, that states have a minimum of
start 55 FR 8781
10 working days and a maximum of 15 working days to provide comments on EPA-
prepared RI/FSs, RODs, ARAR/TBC determinations, and RDs. States were provided
a minimum of 5 working days and a maximum of 10 working days to comment on the
proposed plan (see preamble to proposed rule at 53 FR 51456-57).
Response to comments: Several commenters disagreed with the minimum/maximum
timeframes for review of EPA-lead documents. One stated that some of these
documents, such as the RI/FS and ROD, are incredibly long and complex and such
deadlines would be impossible to meet. The commenter argued that more time
for review and comment must be provided but did not specify minimum/maximum
timeframes. Another commenter argued that because reviewing state agencies
generally have to coordinate with other state agencies, the timeframe for
state review of EPA-lead documents should be 25 to 30 working days for RI/FSs,
RODs, and ARAR/TBC determinations. One commenter stated that the proposed
five to 10 day timeframe for review of a proposed plan is too tight and that
10 to 15 days would be more realistic. Another commenter stated that a
minimum of 20 working days should be provided for state review of NPL listings
and deletions, ARAR/TBC determinations, RODs, and RDs. The commenter also
recommended a minimum of 30 working days on the final RI/FS and proposed plan.
The commenter further suggested that all review times be expressed in terms
of working and not calendar days.
Other commenters stated that EPA should be held to the same review times
as states, and that EPA regions should be authorized to approve and extend the
state review period without regulatory limitations. One comment stated that
EPA should be bound by the same requirements for response and concurrence at
state-lead sites as states are at EPA-lead sites. The commenter added that
the rule should be revised so that if EPA fails to meet its deadline for
comment, this will be considered a concurrence.
Further, several commenters made suggestions specifically regarding the
procedures for state review of HRS packages. Two commenters stated that
states should be given the opportunity to comment on and review sites before
the listing decision has been made. Another commenter contended that 20 days
is not sufficient time to review sites and that the minimum period for review
should be extended to 30 days.
EPA accepts the recommendation that it be held to the same review times
as states when it reviews state-lead documents. EPA believes that such review
times should be the same for each phase of response regardless of lead agency
designation. However, failure of either the state or EPA to respond shall not
be construed as concurrence. While EPA intends to make all efforts necessary
to meet agreed-upon deadlines, if EPA does not act within specified
timeframes, it should not be interpreted as EPA's approval of an action.
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With regard to the comments that the review times should be revised, EPA
has decided not to revise the number of days specified in 300.515(h)(3) of the
NCP for review of lead agency prepared documents by the support agency; such
review times can be modified by a SMOA and made legally binding in a site-
specific agreement, such as a cooperative agreement or Superfund state
contract (the SMOA cannot be used to alter review times on a site-specific
basis). If a different timeframe agreement is not agreed to in the site-
specific agreement, EPA and the state will be required to meet the deadlines
stated in the NCP. EPA also has decided to use working days for all review
time periods and has changed the rule accordingly.
With regard to the pre-remedial process, states already are active
partners, and indeed, it is often the state environmental agency that performs
the PA/SI. Even when the state does not perform a PA/SI, it often provides
essential information concerning a release to EPA. Thus, states generally do
provide input on potential NPL sites before the listing decision has been
made. However, EPA is willing to work with states to develop procedures for
receiving more input on the listing decision itself. EPA believes that two
considerations must be kept in mind. First, it may not be appropriate to
provide draft HRS packages to those states that would be required by their
state law to release such documents to the public upon request. EPA considers
these documents predecisional, and does not release them to the public during
the rulemaking process. Second, EPA believes that state review of NPL sites
should come toward the beginning, rather than the end, of the HRS process; in
this way, new information provided by states could be incorporated without
delaying a proposed NPL update.
In the deletion process, where state concurrence on notices of intent to
delete are required, EPA is revising the duration of review in
300.435(e)(2) and 300.515(c)(3) to 30 working days.
Final rule: Proposed '' 300.425(e)(2), 300.515(c) and (h) are revised as
follows:
1. EPA is changing the language in '' 300.425(e) (2), 300.515(c) (2) and
(3) regarding the time limit for review of releases considered for listing on
the NPL and for review of notices of intent to delete releases from the NPL.
The timeframe is changed from a minimum of 20 and a maximum of 30 calendar
days to 30 working days. The language also notes that this timeframe will be
followed to the extent feasible.
2. Section 300.515(h)(3) is renamed to refer to "support agency" and
"lead agency" and revised to read that the lead agency shall provide the
support agency an opportunity to review and comment on the RI/FS, proposed
plan, ROD, RD, and any proposed determinations on potential ARARs and TBCs.
The support agency shall have a minimum of 10 working days and a maximum of 15
working days to provide comments to the lead agency on the RI/FS, ROD,
ARAR/TBC determinations, and RD. The support agency shall have a minimum of
five working days and a maximum of 10 working days to comment on the proposed
plan.
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Name: Sections 300.505 and 300.515(d). Resolution of disputes.
Proposed rule: The preamble to proposed Subpart F stated that a region and a
state may adopt a dispute resolution process to be used to resolve any
differences that might impede the response process (53 FR 51457) . Differences
should be addressed at the staff level first and raised to management if a
mutually acceptable solution is not attained. The preamble further stated
that a region and a state could jointly raise the dispute to the Assistant
Administrator for Solid Waste and Emergency Response for a final
determination. Alternatively, a region and a state may establish a different
dispute resolution process in a SMOA.
Proposed ' 300.515(d) stated that if EPA intended to waive any state-
identified ARARs or did not agree with the state that a certain state standard
was an ARAR, EPA shall formally notify the state when it submitted the RI/FS
report for state review or responded to the state's submission of the RI/FS
report. The preamble also stated that EPA, operating in its oversight role
for CERCLA enforcement actions, would resolve ARARs disputes between the lead
agency and PRPs.
Response to comments: Commenters expressed dissatisfaction with the role
start 55 FR 8782
of EPA as the final judge in ARAR disputes. One commenter suggested the use
of an "alternate dispute resolution" process, with a third party offering a
non-binding opinion. Another commenter proposed the incorporation of a
state/EPA dispute resolution into a SMOA to be binding on both parties.
In response, EPA believes that its responsibility to ensure that
remedies conform to the mandates of CERCLA justify EPA's role in resolving
ARARs disputes. ARARs determinations are a significant component of selecting
such remedies. Moreover, ARARs determinations may directly affect the cost of
a remedy and EPA is required by CERCLA to ensure consistent use of Fund
monies. EPA concludes, therefore, that it is necessary and appropriate that
EPA, rather than a third party, will resolve ARARs disputes.
EPA encourages, but does not require, inclusion of dispute resolution
clauses in their SMOAs. Any resolution process should encourage timely
resolution of disputes which could impede the response process. EPA is
currently developing guidance on dispute resolution procedures.
One commenter favored the resolution of all disagreements with states
regarding ARARs waivers before the RI/FS report is completed and before the
proposed plan is made available to the public. EPA believes, as a policy
matter, this is an appropriate suggestion and will, to the extent practicable,
attempt to resolve all ARARs disputes before the proposed plan is issued to
the public. Because some ARARs may still be unknown at the time of the RI/FS,
it may not be possible to resolve all ARARs disputes by this time.
Another commenter recommended the inclusion of PRPs into the dispute
resolution process when a PRP disagrees with EPA's assessment of a site's
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ARARs. This commenter suggested an informal meeting between PRPs and the EPA
Regional Administrator to discuss disagreements, followed by a written
decision by the appropriate Regional Administrator. EPA believes that this is
not necessary because PRPs have the opportunity to express disagreement over
ARARs decisions in their comments on the proposed plan. Further, if the PRP
conducts an RI/FS pursuant to a consent order or decree, procedures for
resolving ARARs disputes are usually contained in such orders or decrees.
Final rule: EPA is promulgating the rule as proposed except that the language
on advisories, criteria or guidance in '' 300.515(d), (d)(1) and (2) and
300.515(h)(2) has been modified (see preamble section on TBCs above).
Name: Section 300.515(e)(1) and (2). State involvement in selection of
remedy.
Proposed rule: Proposed ' 300.515(e) discussed the roles of EPA and the state
in the selection of remedy process. It reflected the evolution of the
EPA/state partnership in recent years by providing the state, when it was the
lead agency, with responsibilities in the selection of remedy process. This
new concept would be applicable to both Fund-financed and non-Fund-financed
actions in which the state as lead agency would recommend the remedy and
provide EPA an opportunity to concur with and adopt the remedy. This
recommendation/concurrence approach was in keeping with the statutory
requirement to provide substantial and meaningful involvement in the
initiation, development, and selection of remedial actions (see preamble to
proposed NCP at 53 FR 51456-59).
Specifically, ' 300.515(e)(1) described how EPA and the state will
interact during the development and concurrence of the proposed plan. The
lead agency shall prepare a proposed plan upon conclusion of the RI/FS. Once
completed the support agency shall be given an opportunity to comment and
concur; however, if agreement cannot be reached the proposed plan shall be
published with a statement explaining the support agency's concerns regarding
the plan.
Section 300.515(e)(2) provided further information regarding EPA and
state involvement in the preparation of a ROD. For all EPA-lead sites, EPA
shall prepare the ROD and provide the state an opportunity to concur with the
recommended remedy. For Fund-financed state-lead sites, EPA and the state
shall designate sites for which the state shall prepare the ROD and seek EPA's
concurrence and adoption of the remedy specified therein and sites for which
EPA shall prepare the ROD and seek the state's concurrence. For non-Fund-
financed state-lead enforcement response actions taken at NPL sites, EPA and
the state may designate sites for which the state shall prepare the ROD and
seek EPA's concurrence in and adoption of the remedy specified therein.
Non-Fund-financed state-lead response action means that a state is
responding to a release pursuant to state law, not CERCLA. CERCLA
enforcement functions may not be delegated to states, except as specifically
authorized under CERCLA.
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Either EPA or the state may choose not to designate a site as state-lead.
Response to comments: 1. Review and publication of proposed plan. In cases
where the state has the lead, one commenter questioned whether the state
should be allowed to publish a proposed plan without EPA's prior approval.
EPA agrees that in Fund-financed state-lead remedial response, EPA shall
always be given the opportunity to review the proposed plan before it is
published. Whenever possible EPA and the state shall try to come to
agreement; however, if no concurrence can be reached, the state shall not
publish the plan and EPA may assume the lead for completing the proposed plan
and ROD. At non-Fund-financed state-lead sites, the state may publish the
proposed plan without EPA's approval; however, EPA still retains the right to
proceed under its own CERCLA authorities if necessary to ensure compliance
with section 121 and other pertinent provisions of CERCLA. If the site is
EPA-lead or EPA resumes the lead from the state, the EPA may publish the
proposed plan without state approval; however, as discussed below the state
must still provide its CERCLA 104(c) assurances before remedial action can
begin. As presented in the proposed and final regulation, when agreement
cannot be reached the lead agency shall include a statement describing the
support agency's concerns with the proposed plan.
2. Development and selection of the ROD. Many commenters strongly
supported concurrence by the support agency for remedies recommended by the
lead agency, regardless of whether the state or EPA has the lead. Several
commenters strongly supported this concurrence as an important sign of
progress toward smoothing the relationship between EPA and the states by
placing them on more equal ground. These commenters stressed that concurrence
indicates that EPA understands that the state is the ultimate caretaker of
Superfund sites, and, therefore, must have a strong voice in what happens at a
site. Several commenters emphasized that concurrence should be based on the
principle that the lead agency is just that and support agency oversight
should be minimized. Most commenters stressed that this is the best process
to maximize the use of limited government resources and facilitate the timely
cleanup of Superfund sites.
A few commenters emphasized the distinction between giving the state the
"opportunity to concur" and having concurrence as a prerequisite in various
stages of EPA-lead actions. One commenter gave the example that state
concurrence is not a prerequisite in the issuance of a ROD by EPA. However,
EPA's concurrence is required in the
start 55 FR 8783
issuance of a ROD for state-lead Fund-financed actions. One commenter stated
that "concurrence," as set forth in ' 300.515(e), was contrary to the meaning
of the word. The commenter noted that if the state does not concur with the
remedy, EPA should not go forward with it.
EPA's intention in this section of the proposed rule on concurrence was
to stress the opportunity for dialogue between EPA and the state in the remedy
selection process. Although, as a matter of policy, EPA retains
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responsibility for selecting the remedy, it is important for both parties to
concur in the selected remedy, whenever possible, to avoid problems during
implementation of the remedy.
EPA has decided not to revise the requirement that EPA's concurrence is
required before a state may proceed with a Fund-financed response action.
However, this does not prevent a state from attempting to proceed with the
response action using their own funds or enforcement authorities, except as
limited by CERCLA section 122(e)(6). If a state decides to pursue this
avenue, it may not claim credit pursuant to ' 300.510(b)(2) for remedial
action expenses since EPA never concurred with the selected remedy, and the
state action may be subject to possible preemption under CERCLA section
122(e)(6) if the state uses its own enforcement authorities to implement such
action. EPA will not be bound by a state action or any EPA/state agreed-upon
action since new information may arise and create the need for additional
response at the site in order for the remedy to protect human health and the
environment.
Regardless of whether concurrence was obtained on the selected remedy at
this stage in the response process, both EPA and the state have another
opportunity available to them to express disapproval of the selected remedy.
The state's CERCLA section 104 assurances are required prior to the
implementation of remedial action conducted under section 104 of CERCLA. If
the state, at this time, still disagrees with the selected remedy, it may
demonstrate nonconcurrence with the remedy by withholding its assurances.
Likewise, if EPA disagrees with the selected remedy, EPA may withhold Fund
money for implementation of the remedial action or section 122(e) approval for
a PRP remedial action. For state-lead sites, if no agreement can be reached,
the state has the option of attempting to proceed with implementation of the
remedy using its own funds, although EPA is not bound by that action. EPA may
not proceed with a Fund-financed action without the state's assurances.
Some comments received regarding the criteria for lead agency
designation (53 FR 51456) also identified the need to address the criteria
used to designate the lead in the preparation of the ROD since the
determination of whether the state has the capability to prepare the ROD is
closely linked to this issue. As discussed earlier, EPA is not incorporating
in today's rule any criteria for lead agency designation. Instead a decision
regarding preparation of the ROD shall be made in consultation with EPA and
the state on a case-by-case basis. All agreements and decisions shall be
documented in a site-specific agreement and not in a SMOA.
Final rule: Proposed ' 300.515(e) is revised as follows:
1. Language is added in final ' 300.515(e)(1) to clarify that the state
may not publish a proposed plan which EPA has not approved. In such event,
EPA may assume the lead from the state at Fund-financed sites if EPA and the
state cannot agree on a proposed plan.
2. EPA is adding a clause in ' 300.515(e)(2)(i) to designate the site-
specific agreement as the proper place to identify whether EPA or the state
shall prepare the ROD at Fund-financed state-lead sites.
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3. EPA clarifies in ' 300.515(e)(2) that EPA must concur in writing with
a state-prepared ROD in order for EPA to be deemed to have approved the
state's decision.
Name: Whether states should be authorized to select the remedy at NPL sites.
Proposed rule: Although the preamble to the proposed revised NCP did not
solicit comments on the appropriateness of authorizing states to select
remedies at NPL sites, many commenters submitted comments calling for EPA to
authorize states to select remedies at NPL sites, going further than the
proposed concurrence concept.
Response to comments: Comments were received from states or state
organizations on this topic. Many commenters believed that CERCLA section
104(d)(1) currently allows EPA to authorize states to select the remedy at NPL
sites. One commenter argued that the NCP should spell out procedures and
criteria used to authorize states to select a remedy under existing CERCLA
section 104(d)(1). Another commenter stated that unless states are provided
the authority and responsibility to select remedies at NPL sites, states
believe that their time and effort is better spent working on non-NPL sites
where they are not duplicating effort with EPA. States would be more
reluctant to request lead agency designation at an NPL site.
One commenter contended that authorizing states to select remedies is
consistent with CERCLA section 104(d)(1). If, however, EPA will not
completely authorize states to select remedies, this commenter recommended
granting authority to states for sites where remedial actions will cost up to
$10 million.
Another commenter stated that the agency making a remedy recommendation
or actually selecting the remedy should be a function of which agency
conducted the RI/FS at the site.
In response, EPA acknowledges that several states have their own
"superfund" programs and is encouraged by their willingness to take on an even
greater role in cleaning up sites. EPA believes, however, that it is not
appropriate at this time to turn over the final decision-making authority on
remedy selection to states. While Congress appeared to contemplate an
increased role for states in the remedial process through enactment of CERCLA
section 121(f), EPA believes that it should retain primary responsibility for
the federal Superfund program. EPA intends, however, that the concurrence
process provide a significant and meaningful role for state involvement in the
cleanup process. EPA believes that if the state is the lead agency for the
RI/FS, it generally should recommend a remedy for EPA's adoption. Further,
keeping the final responsibility for remedy selection within EPA (rather than
dividing it among the 50 states and EPA) furthers the goal of ensuring
consistency among remedies implemented at sites.
EPA notes, however, that for non-Fund-financed state-lead enforcement
sites, the state may select the remedy
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(' 300.515(e)(2)(ii)), although EPA shall not be deemed to have approved of
the remedy absent formal concurrence. In such cases, the state is proceeding
under the authority of state law and could take a similar action whether or
not the site was the subject of CERCLA action.
Final rule: There is no rule language on this issue.
Name: Section 300.515(f). Enhancement of remedy.
Proposed rule: Section 300.515(f) provided that if a state determined that a
proposed Fund-financed remedial action should comply with substantive state
standards that EPA has determined are not ARARs, or with state ARARs which EPA
has determined
start 55 FR 8784
to waive pursuant to CERCLA section 121(d)(4), the state shall fund the entire
additional cost associated with compliance with such ARARs. The state may be
required to continue the lead for the RD/RA or for the additional requirements
if it is a state-lead Fund-financed project or to assume the lead for remedial
design and construction, or for the additional requirements only, if the
project is federal-lead.
The proposed rule further provided that if a state determines that a
Fund-financed remedial action should exceed the scope of the selected remedy,
i.e., an enhancement of the selected remedy, the state shall fund the entire
additional cost associated with such enhancement. The state may be required
to assume the lead for the remedial design and construction of the remedy or
only for the state-funded enhancement if that enhancement can be conducted as
a separate phase or activity.
The proposed rule also reflected CERCLA section 121(f)(2) which provides
that if a state determines that a remedial action under sections 106 and 122
of CERCLA should attain state requirements that EPA and a federal district
court have determined need not be met in accordance with criteria in CERCLA
section 121(d)(4), the state shall fund, and may be required to undertake, the
additional work.
Response to comments: Several commenters questioned the authority of EPA to
require states to pay for enhancements or to assume the lead in cleanups when
state ARARs are waived or state standards are deemed not to be ARARs.
Commenters argued that EPA has no authority under CERCLA to impose these
requirements on states, even if a state rejects the EPA-selected remedy in
favor of a more extensive cleanup.
In response, as a threshold matter, no state is "required" to seek an
enhancement of a remedy selected under CERCLA. The issue is, where a state
wishes to enhance or supplement an EPA-selected remedy, under what
circumstances may it do so, and who should pay for and supervise the
supplemental action. The answers to these questions are complicated, and
require a thorough discussion of the situations in which enhancements may be
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appropriate, and EPA's view on state and federal responsibilities for
enhancements.
It is important to note at the outset that states already have
significant opportunities during the RI/FS process leading up to remedy
selection to suggest to EPA that a proposed remedy should attain certain
standards, or that the proposed remedy should be expanded in scope. As
explained earlier in this preamble, the states may either act as the lead or
support agency for Fund-financed actions (' 300.500(b)), and have a clear
opportunity to identify their potential ARARs -- i.e., promulgated state
requirements that are more stringent than federal requirements ('
300.400(g)(4)) -- early in the process (' 300.400(g)(1) and (5)). The lead
agency will then seek agreement from the support agency on a proposed ROD;
certain requirements will then be found to be ARARs, and others may be found
not to be ARARs, or to be appropriate for waiver under one of the limited
waiver categories set out in
300.430(f)(1)(ii)(C). The proposed plan will then be issued for public
comment, and after consideration of state and public comments, EPA will select
the final remedy.
Through this process, EPA hopes to reach agreement with the affected
state both on the appropriate scope of the selected remedy, and on those state
law standards that should be met. EPA has specifically discussed in this rule
a procedure for dispute resolution with the states in order to foster
agreement on ARARs ('' 300.515(d)(3) and (4)). Thus, EPA contemplates that in
many cases, state ARARs issues, and extent of remedy issues generally, will be
resolved during the remedial evaluation and selection process outlined in the
NCP. Where such requirements do become part of the EPA-selected remedy, they
would be paid for according to the appropriate cost share in CERCLA section
104 (for Fund-financed actions).
Even after the ROD has been signed, the state may ask EPA to make
changes in the selected remedy, or to expand the scope of the remedy. If EPA
agrees that the state's suggestions are appropriate and necessary to protect
human health and the environment, EPA may include the changes in the selected
remedy through a ROD amendment or explanation of significant differences
(consistent with final rule ' 300.435(c)(2)); in the case of a Fund-financed
remedy, EPA would share in the costs of the modified or additional activity.
If EPA concludes that the state-suggested changes or expansions are not
necessary to the selected remedial action, then EPA will not modify the ROD or
pay for (or order) the additional action; however, EPA may still decide to
Where EPA and the state disagree on a remedy selection, a state has the
option of withholding its state assurances, thereby preventing the remedy
from proceeding as a Fund-financed action (although EPA could initiate an
enforcement action), and for EPA enforcement actions, a process is available
for states to challenge a decision by EPA to waive an ARAR (CERCLA section
121(f)(2)(B)). These are, however, extreme measures, and the Agency's goal
is to reach agreement with states through the normal remedy selection
process.
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allow the additional action to proceed concurrent with the EPA-selected
remedy.
Where EPA finds that the proposed change or expansion is not necessary
to the EPA-selected remedy, but would not conflict or be inconsistent with it,
EPA may agree to integrate the proposed change or expansion into the planned
CERCLA remedial work, but only if the state agrees to fund all necessary
changes or additions, and to assume the lead for supervising the state-funded
component of the remedy (or, if EPA determines that the state-funded component
cannot be conducted as a separate phase or activity, for the remedial design
and construction of the entire remedy). Although one commenter questioned the
propriety of having the state pay for such changes, EPA believes that it is
both reasonable and appropriate for the states to pay for and supervise tasks
that they have requested and that EPA has not selected as part of its remedy.
Placing these responsibilities on states is also consistent with the approach
set out by Congress in CERCLA section 121(f)(2)(B), when a state seeks to
implement an ARAR that has been waived by EPA.
For example, the state may want the cleanup of ground water to attain
water quality levels beyond those required under CERCLA, and thus may wish to
maintain a pump-and-treat system longer than deemed necessary in the ROD.
Similarly, the state may request additional work that falls outside the scope
of the design and construction at the site, such as the extension of a water
line outside the Superfund site. Such changes or expansions that would not
conflict or be inconsistent with the EPA-selected remedy would generally be
accommodated, on the condition that the state fund and supervise the change or
expansion. (EPA would provide notice to the public where such accommodations
affect the selected remedy.)
However, in cases where EPA concludes that a state-proposed change or
expansion would conflict or be inconsistent with the EPA-selected
start 55 FR 8785
remedy, the suggested change should not go forward.
EPA does not believe it would be appropriate to allow the state to
proceed with proposed changes to EPA's lawfully-selected remedy without EPA
approval. Indeed, to do so would be tantamount to giving the states a veto
power over EPA remedial action decisions, contrary to Agency policy (discussed
earlier in this preamble) that EPA should retain the final authority to select
CERCLA remedies. Further, allowing states to go forward with actions
inconsistent with those being implemented by EPA would likely result in delays
in the cleanup of Superfund sites, and could potentially create unsafe working
These proposed "changes" could include the attainment of a particular
state standard that EPA found not to be an ARAR, or waived.
Often the state is the most appropriate entity to take the lead for such
combinations of Fund-financed and non-Fund-financed actions because of
contracting issues.
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conditions for remedial action contractors.
Consistent with this discussion, final rule
300.515(f) has been revised to better reflect the conditions under which
state-suggested changes to, or expansions of, EPA-selected remedial actions
should go forward.
Finally, as noted above, there is a process provided for in CERCLA
section 121(f)(2) for states to seek to require remedial actions secured under
CERCLA section 106 to conform to waived ARARs. EPA believes it is appropriate
for the final rule simply to reference the procedures set out in the statute,
rather than attempt to characterize them. Thus, the final rule on this point
has also been changed.
Final rule: Section 300.515(f) is revised as follows:
(f) Enhancement of remedy. (1) A state may ask EPA to make changes
in or expansions of a remedial action selected under Subpart E.
(1) If EPA finds that the proposed change or expansion is necessary
and appropriate to the EPA-selected remedial action, the remedy may be
modified (consistent with
300.435(c)(2)) and any additional costs paid as part of the remedial
action.
(ii) If EPA finds that the proposed change or expansion is not
necessary to the selected remedial action, but would not conflict or be
inconsistent with the EPA-selected remedy, EPA may agree to integrate
the proposed change or expansion into the planned CERCLA remedial work
if:
(A) The state agrees to fund the entire additional cost associated
with the change or expansion; and
(B) The state agrees to assume the lead for supervising the state-
funded component of the remedy or, if EPA determines that the state-
funded component cannot be conducted as a separate phase or activity,
for supervising the remedial design and construction of the entire
remedy.
(2) Where a state does not concur in a remedial action secured by
EPA under CERCLA section 106, and the state desires to have the remedial
action conform to an ARAR that has been waived under
300.430(f)(1)(ii)(C), a state may seek to have that remedial action so
conform, in accordance with the procedures set out in CERCLA section
121 (f)(2).
Name: Section 300.515(g). State involvement in remedial design/
remedial action.
Proposed rule: Proposed ' 300.515(g) read that for Fund-financed remedial
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actions, the lead and support agencies shall conduct a joint inspection to
determine that the remedy has been constructed in accordance with the ROD and
the remedial design.
Response to comments: Several state commenters contended that the states'
interest in cleaning up sites and their participation in 10 percent of the
costs of remedial actions demands a much larger role in remedial
design/remedial action than just a final joint inspection. Therefore, more
detailed and specific language should be provided in the final NCP as it
pertains to state role in the implementation of remedial actions. Specific
recommendations included that both EPA and a state, regardless of whether the
action is EPA or state-lead, should review and comment on the 30, 60, and 95
percent designs, as well as agree on the final design and specifications.
Also, commenters recommended that both parties should discuss
significant changes and must consult prior to reopening a ROD. Other
suggested areas for EPA and state interaction were bid procurement, review of
contract prior to award, construction progress meetings, construction
oversight, change order negotiations and approvals above limits specified in
the cooperative agreement. One of the commenters stated that while these
issues may be addressed in a SMOA, minimum requirements should be specified in
the NCP in the absence of a SMOA.
EPA agrees that the state role during remedial design and remedial
action is very important. However, rather than specify the minimum
requirements for state involvement during remedial design and remedial action
in the final rule, the final rule will specify that state/EPA interaction
during remedial action will be described in site-specific agreements: either a
cooperative agreement or Superfund state contract. This will provide
flexibility on a site-by-site basis. The range of responsibilities assumed by
states under site-specific agreements or SMOAs is necessarily constrained by
the legal limits on delegation of EPA authority, e.g., limitations on
delegating enforcement authority.
Final rule: Section 300.515(g) will be retitled as "State involvement in
remedial design and remedial action." The following sentence is added to
300.515(g): "The extent and nature of state involvement during remedial design
and remedial action shall be specified in site-specific cooperative agreements
or Superfund state contracts, consistent with 40 CFR Part 35 Subpart O."
Name: Section 300.520(a) and (c). State involvement in EPA-lead enforcement
negotiations.
Proposed rule: Section 300.520(a) stated that "EPA shall notify states of
response action negotiations to be conducted by EPA with potentially
responsible parties during each fiscal year." Section 300.520(c) stated: "The
state may be a party to such settlements in which it is a participant in the
negotiations."
Response to comments: One comment proposed revising ' 300.520(c) so that
states may become a party to a settlement whether or not they first
participate in the negotiations. Another comment asked that ' 300.520(a) be
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expanded to require EPA to notify states not only that PRP negotiations are
going to be held, but where and when. One commenter stated that notice is
frequently too late for states to participate meaningfully.
EPA recognizes that there may be circumstances where the state is
involved in initial negotiations, decides not to be heavily involved in all
sessions, but may want to sign the negotiated decree without modifying it. EPA
agrees that the proposed revision would better reflect the statutory intent of
CERCLA section 121(f)(1)(F), which requires: "Notice to the state of
negotiations with potentially responsible parties regarding the scope of any
response action at a facility in the state and an opportunity to participate
in such negotiations and, subject to paragraph (2), be a party to any
settlement." However, it is also important to note that while it may be
appropriate to allow states to join settlements at any time, EPA may conclude
settlement negotiations with PRPs without state concurrence (CERCLA section
121(f)(2)(C)).
Final rule: Proposed ' 300.520(c) is revised as follows: "The state is not
foreclosed from signing a consent decree if it does not participate
substantially in the negotiations."
Name: Dual enforcement standards.
Proposed rule: Subpart F discussed provisions for "substantial and meaningful
state involvement" in the cleanup process. The subpart introduces the
EPA/state Superfund memorandum of agreement (SMOA), a non-binding agreement
between EPA and a state to
start 55 FR 8786
define respective governmental roles for state participation in pre-remedial,
remedial and enforcement response actions. The SMOA recognized state
leadership while preserving EPA review and concurrence powers, and EPA's right
to proceed under CERCLA to ensure compliance with section 121 and other
provisions of CERCLA. At EPA-lead sites, the state may disagree with EPA's
choice of remedy. Section 300.505 described the procedures to develop SMOAs.
Section 300.515 outlined state involvement in remedial actions, including a
discussion of what options are available when states and EPA disagree on
cleanup standards.
Response to comments: EPA received comments stating that the proposed NCP was
unclear on whether states have the right to require PRPs to meet more
stringent state requirements in addition to CERCLA-specified ARARs for a Fund-
financed or an enforcement action. The large number of comments EPA received
on this issue reflects a strong concern that dual and potentially conflicting
standards will be enforced by EPA and states. EPA acknowledges that this is
an area requiring further review and evaluation. EPA believes, however, that
mechanisms in the final NCP can be used to minimize the possibility of
conflicting standards imposed upon PRPs.
One such mechanism is the SMOA. An important purpose of SMOAs is to
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establish a working relationship between EPA and a state on coordinating their
respective involvement in remedy selection and enforcement strategies at sites
throughout that state. Another mechanism is the concurrence process described
in the NCP. The degree to which EPA (or another federal agency) and a state
can concur on each other's remedies will reduce the need for EPA to take a
separate action at a site or for the state to challenge remedies selected by
EPA which are covered by CERCLA sections 121(f)(2) or (3). The final NCP
places great emphasis on the concurrence process (see ' 300.515(e)(2)) and on
dispute resolution (see preamble section above) to encourage EPA, other
federal agencies and states to resolve differences among them and select the
single remedy for a site that will fulfill the objectives and requirements of
each agency.
A commenter objected to the statement that EPA silence on a state-lead
remedy (selected under state law) cannot be construed as concurrence and that
EPA retains the right to proceed with a remedy under CERCLA. In response, EPA
may not be an active participant in negotiations between a state and PRPs at
state-lead sites but EPA encourages states to notify EPA of such negotiations
and seek EPA concurrence on the remedy selected. In the preamble to the
proposed NCP, however, EPA cautioned that EPA will not be bound to any
decisions made by a state if EPA does not concur on the remedy (see 53 FR
31458). EPA believes that it has a responsibility to bring an action under
CERCLA when necessary to protect human health and the environment. EPA
intends that the processes established in the final NCP will reduce the need
for such action but EPA must maintain its ability to perform statutory
mandates.
Other commenters contended that states should not be allowed to contest
an EPA-lead remedy if they did not participate in negotiations, and suggested
that some mechanism be included in the NCP to require EPA and state
participation and concurrence in all remedial action settlements at NPL sites.
A similar comment recommended that EPA and states be joint signatories on
more settlements. In response, EPA encourages concurrence by both EPA and a
state but does not believe that it is necessary to require such concurrence on
all settlements or remedies. EPA and states are encouraged to plan ahead and
decide on the extent of their involvement in the work necessary to reach
settlements and decide on remedies. EPA and the state can also agree that
even if one agency is not substantially involved in the work, that agency may
still sign or concur on the settlement or the ROD. In fact,
300.520(c) of the final NCP provides that a state is not foreclosed from
signing a consent decree if it does not participate substantially in the
negotiations. In addition, a state is not required to participate in
settlement negotiations in order to challenge a remedy under CERCLA section
121(f)(2) or (3). EPA believes, however, that involving the state in such
negotiations may reduce the circumstances under which a state would resort to
a statutory challenge.
Finally, a commenter recommended that the NCP grant states that
participate in settlement negotiations for actions taken under CERCLA sections
106 or 122, the right to review, comment on and approve/disapprove work
undertaken by PRPs. In response, a state may participate in settlement
discussions for actions to be taken under sections 106 or 122. The oversight
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activities that may be conducted by a state, however, are limited by the
extent to which EPA can delegate enforcement responsibilities under CERCLA
section 106. States may approve or disapprove work by PRPs when conducting an
enforcement action under state law.
Final rule:
There is no rule language on this issue.
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SUBPART G — TRUSTEES FOR NATURAL RESOURCES
Section 107(a)(4)(C) of CERCLA imposes liability for the injury,
destruction, or loss of a natural resource, including the costs of a natural
resources damage assessment, resulting from the release of hazardous
substances. Section 107(f)(1) of CERCLA provides that only properly
designated federal trustees, authorized representatives of an affected state,
or Indian tribes can pursue a section 107(a)(4)(C) action. Clean Water Act
(CWA) section 311(f) imposes similar liability for discharges of oil and
hazardous substances into navigable waters of the United States.
Pursuant to section 1(c) of Executive Order 12580 (52 FR 2923, January
29, 1987), and in accord with CERCLA section 107(f)(2)(A) and section 311(f)
of the Clean Water Act, the Secretaries of Defense, the Interior, Agriculture,
Commerce, and Energy are among the agencies that are designated in the NCP as
federal trustees for natural resources. Those federal trustees act on behalf
of the President in assessing damages to natural resources from discharges of
oil or releases of hazardous substances, pollutants, or contaminants. Subpart
G outlines the designations of federal trustees under CERCLA. Although the
1986 amendments to CERCLA necessitated few changes to the NCP provisions on
natural resources, the major objective for this proposed revision is to make
the subpart more readable and understandable to those who are not familiar
with trustee agency authorities. Because the primary purpose of this subpart
is to list natural resource trustee agency designations so as to ensure prompt
notification as required by CERCLA, the proposed changes reflect an overriding
concern that trustee jurisdictions be described as accurately as possible.
Section 301(c) of CERCLA requires the promulgation of rules for the
assessment of damages for injury to, destruction of, or loss of natural
resources resulting from a discharge of oil or a release of a hazardous
substance under CERCLA and the Clean Water Act. Pursuant to Executive Order
12580, section 11(d), the responsibility to promulgate these regulations has
been delegated to the Department of the Interior (DOI). DOI has promulgated
rules for the
start 55 FR 8787
assessment of damages for the injury to, destruction of, or loss of natural
resources (see 43 CFR Part 11). Parts of those rules were struck down by the
U.S. Court of Appeals for the District of Columbia Circuit on July 14, 1989,
and remanded to the Department of the Interior for further consideration. See
State of Ohio v. U.S. Department of the Interior, 880 F.2d 432 (D.C. Cir.
1989), and State of Colorado v. U.S. Department of the Interior, 880 F.2d 481
(D.C. Cir. 1989) .
The use of the procedures described in DOI 1 s rule, 43 CFR Part 11, is
optional. However, the results of an assessment performed in accordance with
the DOI rule by a federal or state trustee, or Indian tribe, if reviewed by a
federal or state trustee, shall be given the status of a rebuttable
presumption in an action to recover damages for injuries to, destruction of,
or loss of natural resources. Whether or not the procedures in 43 CFR Part 11
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are followed, a trustee agency may decide to proceed with a range of
information gathering and other trust-related activities.
The following are summaries of comments on the proposed Subpart G and
EPA's responses.
Name: Section 300.600. Designation of federal trustees.
Existing rule: Section 300.72 of the 1985 NCP designated those federal
officials who are to act on behalf of the public as trustees of federal
natural resources. It also described the types of resources that the agencies
manage and gave examples of the resources that might be under their
trusteeship.
Proposed rule: In the proposed rule (renumbered ' 300.600), EPA attempted to
clarify and define as accurately as possible the federal agencies responsible
for specific resources. It did this by delineating in the paragraph headings
the federal agency or type of federal agency responsible for natural
resources. In addition, EPA proposed to change the narrative to describe in
more detail the resources that agencies manage and to give examples of
resources that might be under an agency's trusteeship.
The proposed rule designated the Secretary of Commerce as a trustee.
The proposed rule also provided that the Secretary shall act with the
concurrence of other federal agencies when the resources or authorities of
other agencies are involved. The Secretary is, however, a trustee in his own
right also, pursuant to various statutory authorities.
The proposed rule also described federal agency jurisdiction over
certain natural resources. The 1985 NCP designated the Secretary of Commerce
as the trustee for natural resources in or under "waters of the contiguous
zone and parts of the high seas...." The proposed rule includes under the
Secretary's jurisdiction, the natural resources "in or under tidally
influenced waters, the waters of the contiguous zone, the exclusive economic
zone, and the outer continental shelf...."
The proposed rule also deleted the 1985 NCP's ('' 300.72(a)) and (b))
exclusion of lands or resources in or under U.S. waters. This was proposed
because federal trusteeship derives primarily from authority to manage or
protect affected resources regardless of where these resources are located.
Response to comments: 1. Territorial sea - definition. One commenter asked
if Subparts D and G will be revised to reflect the new definition of
"territorial sea" in the January 1989 Presidential Proclamation.
The term "territorial sea" is used in the NCP only in the definition of
"contiguous zone." "Territorial sea" is not defined in the NCP but is defined
in CERCLA section 101(30) as having the same meaning provided in CWA section
502. This section defines the term "territorial sea" as "the belt of the seas
measured from the line of ordinary low water along that portion of the coast
which is in direct contact with the open sea and the line marking the seaward
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limit of inland waters, and extending seaward a distance of three miles." On
December 27, 1988, the President issued a Proclamation (No. 5928, 54 FR 777,
January 9, 1989) extending the territorial sea of the United States to 12
nautical miles from the baselines of the United States determined in
accordance with international law. However, the Presidential Proclamation
provides that nothing therein "extends or otherwise alters existing federal or
state law or any jurisdiction, rights, legal interests, or obligations derived
therefrom...." Therefore, the CWA definition of territorial sea has not been
revised by this proclamation. Accordingly, EPA believes that it is
unnecessary to change the use of territorial sea in the NCP.
2. Trustees' authority. One commenter stated that trustee actions are
authorized by CERCLA, but no specific responsibilities are delineated. The
commenter stated that the main purpose of Subpart G is to indicate the
responsibilities of trustees, not to be a "plan" or other listing of their
activities. However, one commenter recognized the merit of including in
Subpart G examples of the kinds of activities that OSC/RPMs and others could
expect of trustees. The commenter thought that the purpose of the Subpart was
not clearly understood in the preamble and should be clarified.
Another commenter asserted that proposed ' 300.600(b) could be construed
as limiting trustees' activities to enumerated activities, and should be
clarified, since trustees have many additional authorities other than those
enumerated in that section.
The purpose of Subpart G is not to be an exclusive listing of the
responsibilities of natural resource trustees, but to better inform the public
of natural resource trustee designations. Proposed ' 300.615 outlines some
responsibilities of all trustees in general and federal trustees in
particular. However, those responsibilities listed are not exclusive.
Proposed ' 300.615(e) lists some actions which may be taken by any trustee.
Those actions are described as including but not being limited to certain
enumerated actions. Nowhere in the preamble to the proposed rule or in the
proposed rule itself is the suggestion that the listed activities are the only
activities which trustees may take. Trustees may act pursuant to any other
authority they have besides the NCP. However, to clarify the issue, EPA has
changed the final rule language in the introduction to
300.615(c) to read "Upon notification or discovery of injury to, destruction
of, loss of, or threat to natural resources, trustees may, pursuant to section
107(f) of CERCLA or section 311(f)(5) of the Clean Water Act, take the
following or other actions as appropriate:". The addition of "take the
following or other actions as appropriate" is intended to highlight that the
enumerated actions are not the only actions a trustee might take under CERCLA
or the Clean Water Act, but are only examples of actions a trustee might take.
EPA has also revised the final rule language in the introduction to
300.615(e) to clarify that the trustee is acting pursuant to the Clean Water
Act and CERCLA. The clarification is intended to highlight that trustees may
also act pursuant to whatever authority they have and that the examples of
responsibilities listed stem only from CERCLA and the Clean Water Act. EPA
has also revised the introduction to ' 300.615(d) to specify that the
trustees' authority includes, but is not limited to the enumerated actions.
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As to the comment concerning ' 300.600(b), EPA believes that nothing in
that proposed or final section limits the trustees' authority to act in the
proper circumstances. The section does not enumerate all the activities which
the trustees may undertake, it merely describes situations under which they
may act pursuant to CERCLA and the
start 55 FR 8788
Clean Water Act. Those situations are when "there is injury to, destruction
of, loss of, or threat to natural resources as a result of a release of a
hazardous substance or a discharge of oil." However, to clarify that the rule
does not limit trustees to act under other authorities, EPA is changing the
rule language in ' 300.600(b) to read that trustees are authorized to act
"pursuant to section 107(f) of CERCLA or section 311(f)(5) of the Clean Water
Act" in the listed instances.
3. Authority of Secretary of Commerce. One commenter believed that
proposed ' 300.600(b)(1) implied that the Secretary of Commerce acts on behalf
of other federal agencies with authorities to manage or protect natural
resources in coastal or marine areas but has no management or protection
authorities himself and suggested that the rule language be changed to reflect
that the Secretary is a trustee in his own right.
Another commenter questioned whether the requirement in
300.600(b)(1) that the Secretary of Commerce (through NOAA) obtain the
concurrence of other federal agencies before it acts is lawful. The commenter
noted that this is particularly important where a federal agency may be a PRP,
and may have the incentive to diminish the actions of the Department of
Commerce and therefore reduce its potential liability. The commenter urged
that the "concurrence" requirement be dropped.
Certain natural resources (e.g, within coastal and marine areas) are
indeed under the jurisdiction of the Department of Commerce. EPA has
clarified final ' 300.600(b)(1) to read: "Secretary of Commerce. The
Secretary of Commerce shall act as trustee for natural resources managed or
protected by the Department of Commerce or by other federal agencies and that
are found in or under waters navigable by deep draft vessels,... (remainder as
proposed)."
Specific natural resources in areas under the trusteeship of DOC may
also be managed or protected under statutes administered by other federal
agencies. Therefore, it is appropriate that the Secretary of Commerce shall,
whenever practicable, seek the concurrence of the other agency when there is
overlapping jurisdiction. Such concurrence is not required by law, however,
and therefore, EPA will revise ' 300.600(b)(1) to eliminate the requirement of
mandatory concurrence of another federal agency before the Secretary of
Commerce takes an action with respect to an affected resource under the
management or protection of that agency. Instead the revised rule provides
that the Secretary of Commerce shall, whenever practicable, seek such
concurrence.
Final rule: EPA is revising proposed ' 300.600 as follows
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1. EPA is revising the introduction to ' 300.600(b) to make it clear
that trustees are authorized to act "pursuant to section 107(f) of CERCLA or
section 311(f)(5) of the Clean Water Act" given the listed circumstances.
Trustees may also act pursuant to whatever other authority they may possess.
2. Section 300.600(b) (1) is being revised to clarify that some natural
resources are managed or protected by the Secretary of Commerce. It is being
further revised to eliminate the requirement of concurrence of another federal
agency before the Secretary of Commerce acts with respect to an affected
natural resource under the management or protection of the other federal
agency. Concurrence of the other federal agency shall be sought whenever
practicable, pursuant to the revised rule.
Name: Section 300.610. Indian tribes as trustees for natural resources under
CERCLA.
Proposed rule: For purposes of a release or threatened release of a hazardous
substance which causes the incurrence of response costs, the 1986 amendments
to CERCLA provide that an Indian tribe may bring an action for injury to,
destruction of, or loss of natural resources belonging to, managed by,
controlled by, or appertaining to such tribe, or held in trust for the benefit
of such tribe, or belonging to a member of such tribe if such resources are
subject to a restriction on alienation. The proposed rule provided that the
tribal chairmen (or heads of the governing bodies), or other person designated
by tribal officials, are trustees for those natural resources. The proposed
rule provided that the tribe, if it designated a person other than the
chairman (or head of the tribal governing body), notify the President of the
trustee designation. The tribal trustee would have similar responsibilities
to state and federal trustees under the proposed rule.
Response to comments: 1. Notification - timeliness of notice. A commenter
noted that tribal resources, either on or off-reservation, may be affected by
off-reservation Superfund sites. The commenter suggested that the NCP should
clearly state that tribal natural resources trustees must be notified when a
tribe's resources are injured by an oil discharge or a release of hazardous
substances because early and proper notice will help Indian tribes protect
their limited resource base by assuring timely assessments and maximum
protective efforts.
EPA realizes that tribal resources, like other natural resources, may be
affected by off-reservation Superfund sites. Pursuant to ' 300.615(b),
trustees are responsible for designating to the Regional Response Teams
(RRTs), for inclusion in the Regional Contingency Plan, appropriate contacts
to receive notifications from the on-scene coordinators (OSCs)/remedial
project managers (RPMs) of potential damages to natural resources. Therefore,
under the final rule, if tribal trustees (or the Secretary of the Interior, as
appropriate) have notified the RRT of an appropriate contact, they will likely
receive the early notification they seek.
2. Trustee designation. A commenter wanted EPA to contact affected
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tribes to determine who will serve as tribal trustee for Superfund activities.
The final rule provides that the tribal chairmen (or heads of the governing
bodies) of Indian tribes, or a person designated by tribal officials to act on
behalf of Indian tribes are natural resources trustees for certain categories
of natural resources. For other categories of resources, the Secretary of the
Interior continues to function as trustee.
Normally the tribal chairman (or head of the governing body of the
tribe) will be the natural resource trustee. However, tribal officials may
choose to designate another person as trustee. When those officials designate
another person as trustee, the final rule provides that the tribal chairman or
heads of the tribal governing bodies notify the President of the trustee
designation. EPA in the past has contacted states to learn of state trustee
designations and will contact federally recognized Indian tribes to learn of
tribal trustee designations.
In contrast to CERCLA, under CWA section 311, Indian tribes are not
trustees and thus may not bring actions for injury to natural resources
pursuant to that Act. For purposes of the Clean Water Act and for certain
circumstances under CERCLA, where the United States continues to act as
trustee on behalf of an Indian tribe, the Secretary of the Interior will
function as trustee of those natural resources for which the Indian tribe
would otherwise act as trustee. Therefore, ' 300.610 is being revised to
eliminate the reference to authority to act of an Indian tribe when there is a
discharge of oil.
3. Tribal resources. A commenter thought that the proposed rule failed
to recognize the scope of tribal resources, e.g., hunting, fishing, and water
rights.
start 55 FR 8789
EPA's description of natural resources in proposed ' 300.600 was not
intended to be an exclusive list, but only to give some examples of natural
resources. It would be impossible to list every type of natural resource.
CERCLA section 101(16) defines "natural resources" as including land, fish,
wildlife, biota, air, water, ground water, drinking water supplies, and other
such resources belonging to the federal government, a state, or local
government, or an Indian tribe, or if such resources are subject to a trust
restriction on alienation, to any member of an Indian tribe.
As to the commenter's specific concern about hunting, fishing, and water
rights, EPA believes that those rights are not themselves natural resources.
The game to be hunted, the fish to be caught, and the water to be used are the
resources, not the rights to those resources. Therefore, no change to rule
language is necessary.
4. Natural resource damage assessments. One commenter suggested that
the language in the preamble to the proposed rule (at 53 FR 51460) stating
that a natural resource damage assessment performed by an Indian tribe, when
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reviewed by federal or state natural resource trustees, will be allowed the
rebuttable presumption, should be changed. The commenter suggested that the
language should be changed to reflect that damage assessments performed by
Indian tribes jointly with federal or state natural resource trustees would
qualify for the rebuttable presumption. The commenter noted that similar
language is found in the preamble to the natural resource damage assessment
regulations at 53 FR 5168 (February 22, 1988).
EPA agrees with the commenter. When federal and state trustees and
Indian tribes work closely together on assessments, such assessments may
qualify for a rebuttable presumption.
Final rule: Proposed ' 300.610 is revised as follows:
1. The second sentence is revised to read: "When the tribal chairman or
head of the tribal governing body designates another person as trustee, the
tribal chairman or head of the tribal governing body shall notify the
President of such designation."
2. The last sentence is revised to read: "Such officials are authorized
to act when there is injury to, destruction of, loss of, or threat to natural
resources as a result of a release of a hazardous substance."
Name: Section 300.615. Responsibilities of trustees.
Proposed rule: The proposed rule reorganized and substantively changed
300.74 of the 1985 NCP. It sought to provide better information on the
actions trustees may take to carry out their responsibilities. The proposed
rule required cooperation and coordination when there are multiple trustees
because of coexisting or contiguous natural resources or concurrent
jurisdiction. It also described the responsibilities of all trustees in
general, and of federal trustees in particular. Finally, in accord with the
amendment of CERCLA, the proposed rule deleted the option of pursuing claims
against the Fund for natural resource damage assessment and restoration of
natural resources.
Response to comments: 1. Coordination — a. Multiple trustees. One commenter
suggested that the final rule should discuss "lead trustee" designation and
exactly what responsibilities and authority the lead trustee has for the
coordination of assessment activities by multiple trustees. Another
commenter asked if three-party agreements among the appropriate federal
Section 107(f)(2)(C) of CERCLA provides that any determination or
assessment of damages for purposes of CERCLA or section 311 of the Clean
Water Act has the force and effect of a rebuttable presumption on behalf of
the trustee in any administrative or judicial proceeding under CERCLA or
section 311 of the Clean Water Act if made by a federal or state trustee in
accordance with the regulations promulgated under CERCLA section 301(c).
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agency, the Indian tribe, and the state will be available in promoting
cooperation.
EPA believes that it is important that only one person (i.e., the lead
agency OSC or RPM) manage activities at the site of a release or potential
release. When there are multiple trustees, EPA recommends that a lead
authorized official be designated to coordinate all aspects of the natural
resource damage assessment, investigation, and planning, including federal
trustees' participation in negotiations with PRPs as provided under CERCLA
section 122(j)(1). This coordination is designed to ensure efficient response
actions and avoid duplication of efforts.
An "authorized official" is a federal or state official to whom is
delegated the authority to act on behalf of the federal or state agency
designated as trustee, or an official designated by an Indian tribe, to
perform a natural resource damage assessment. (See the Department of the
Interior natural resource damage assessment rules at 43 CFR 11.14(d).) A
"lead authorized official" is a federal or state official authorized to act on
behalf of all federal or state agencies, or an official designated by multiple
tribes when there are multiple tribes, affected because of coexisting or
contiguous natural resources or concurrent jurisdiction. (43 CFR 11.14(w).)
The DOI damage assessment rules encourage the cooperation and coordination of
assessments that involve multiple trustees because of coexisting or contiguous
natural resources or concurrent jurisdiction. The DOI regulations also
contain examples of a lead authorized official's responsibilities in a damage
assessment. He acts as coordinator and contact regarding all aspects of the
assessments and acts as final arbitrator of disputes if consensus among the
trustees cannot be reached regarding the development, implementation, or any
other aspect of the Assessment Plan. The lead authorized official is
designated by mutual agreement of all the natural resource trustees. Pursuant
to the damage assessment regulations (at 43 CFR 11.32(a) (1) (ii) (A)-(D)), if
consensus cannot be reached on a lead authorized official: (1) when the
natural resources being assessed are located on lands or waters subject to the
administrative jurisdiction of a federal agency, a designated official of the
federal agency shall act as the lead official; (2) when the natural resources
being assessed are located on lands or waters of an Indian tribe, an official
designated by the Indian tribe shall act as the lead official; and (3) for all
other natural resources for which a state may assert trusteeship, a designated
official of the state agency shall act as lead official.
The final rule suggests that where there are multiple trustees, because
of coexisting or contiguous natural resources or concurrent jurisdictions,
they should coordinate and cooperate in carrying out their responsibilities as
trustees. EPA has substituted the words "should coordinate and cooperate" for
the words "shall coordinate and cooperate" in final ' 300.615(a). EPA has
made this change because one trustee cannot compel another trustee to
coordinate and cooperate in carrying out trust responsibilities, no matter how
desirable that coordination and cooperation might be. However, EPA wishes to
encourage such coordination.
Three-party agreements are not excluded by the NCP. Therefore,
coordination and cooperation may include three-party agreements if necessary
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to facilitate the responsibilities of the trustees.
b. Investigations. One commenter suggested that biological assessment
groups or technical assistance groups formed in various EPA regions provide a
model for coordination that could be
start 55 FR 8790
valuable nationwide, and the preamble might include mention of these as
mechanisms to implement CERCLA section 104(b)(2).
Regional planning and coordination of preparedness and response actions
is accomplished through the Regional Response Team (RRT). Such coordination
may include biological assessment groups or other technical groups. Several
EPA regional offices already include biological and technical assistance
groups. Typically the groups are comprised of representatives from the
Department of the Interior, U.S. Fish and Wildlife Service, the Department of
Commerce (NOAA), and state departments of environmental conservation under the
direction of an EPA chairman.
c. Mandatory coordination. One commenter suggested that language in
proposed '' 300.615(c), 300.410(g), and 300.430(b)(7) should be changed to
delete the words "as appropriate" referring to coordination of trustees'
efforts. This language should be strengthened to be consistent with CERCLA
section 104(b)(2). Such coordination would minimize duplicative efforts and
costs in natural resource damage assessments and RI/FSs, and would lead to
more settlements under section 122 (j) .
Section 104(b)(2) of CERCLA provides that the "[P]resident shall ...
seek to coordinate the assessments, investigations, and planning under this
section with such federal and state trustees." EPA agrees that in most places
in the final rule the term "as appropriate" is not necessary. The term is not
in section 104(b)(2) and is not needed to implement that section. EPA will
eliminate the term "as appropriate" from '' 300.410(g) and 300.430(b) (7), as
the commenter requested, as well as in
300.135 (j) and 300.305(d). However, EPA will retain the term "as
appropriate" in ' 300.615(c). That section discusses the types of actions
which a trustee may take under CERCLA. The trustee may have already taken the
action or the action may not be necessary or desirable. Therefore, it is
necessary to retain the term "as appropriate" in that section.
EPA has also revised ' 300.315(c) to require the OSC to make available
to the trustee information and documentation that can assist the trustee in
determination of actual or potential natural resource injury from oil
discharges. EPA has added the following sentence to the end of ' 300.315(c):
"The OSC shall make available to the trustees of the affected natural
resources information and documentation that can assist the trustee in the
determination of actual or potential natural resource injuries." EPA has
revised ' 300.315(c) to facilitate coordination between the OSC and the
trustee, and to make the provision on oil discharges consistent with the
provision on release of hazardous substances (see ' 300.160(a)(3)).
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As an editorial change, EPA is also adding the words "the trustee" in
300.160(a)(3), so that it reads: "The lead agency shall make available to the
trustees of affected natural resources information and documentation that can
assist the trustees in the determination of actual or potential natural
resource injuries." The addition of the words "the trustees" does not
substantively change the meaning of the section, but emphasizes that the
trustees make the determination of injury to natural resources.
2. Notification -- a. Criteria. A commenter suggested that the section
on trustees should also provide criteria for notifying them.
CERCLA section 104(b)(2) and final NCP ' 300.615(c) provide criteria for
notification of trustees. The statute requires the President to promptly
notify appropriate federal and state natural resource trustees of potential
damages to natural resources resulting from releases under investigation
pursuant to section 104(b). Pursuant to ' 300.135(c) of the final rule, the
OSC/RPM shall collect pertinent facts about the release, including the
potential impact on natural resources. This information is in turn used to
comply with '' 300.135(j) and (k).
b. Not dependent on OSC/RFM. One commenter noted that natural resource
trustee notification should not be dependent upon a decision by the OSC/RPM as
to whether resources are affected by the release. The federal and state
trustee agencies should be notified of the release; trustee agencies have both
the expertise to determine the likelihood of injury to their resources and the
responsibility for making the determination. The commenter suggested that
this issue should be clarified in the preamble to the final rule by
incorporating the following language: "The OSC or lead agency is responsible
for ensuring that state and federal trustees are notified promptly of natural
resources that may be exposed to, may be at risk from, or may be injured by
discharges or releases."
EPA agrees that natural resource trustee notification should not be
dependent upon a decision by the OSC/RPM as to whether resources are affected
by the release. EPA also agrees that the lead trustee should make the
determination of whether resources under its jurisdiction are affected. The
final rule is unchanged in this regard because EPA believes that the final
rule
300.135 (j) and (k) adequately address the commenter's concern.
c. Duty to notify mandatory. One commenter argued that "as appropriate"
or other phrases qualifying either the responsibility to notify, or the timing
of notification, incorrectly lead OSCs and RPMs to view trustee notification
as discretionary. The commenter suggested that language in the preamble
briefly explain the intent or limitations of "as appropriate" or similar
qualifying phrases, such as is done for those same phrases in the preamble of
Subpart J on dispersants, to make it clear that the intent of the NCP
provision is that trustees be notified.
EPA agrees that the OSC/RPM has the mandatory duty to notify the
trustee of discharges or releases that are injuring or may injure natural
resources under a trustee's jurisdiction. Final
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300.135(j) codifies this requirement. The phrase "as appropriate" has been
deleted from the second sentence of
300.135(j). EPA also inadvertently omitted necessary language and included
unnecessary language in the second sentence in proposed ' 300.135(j).
Therefore, EPA has revised that sentence to read: "The OSC or RPM shall seek
to coordinate all response activities with natural resource trustees." The
words "seek to" coordinate were added to track the language of section
104(b)(2). The words "...should consult with the natural resources trustee in
determining such effects and..." were deleted from the second sentence
because those words may have implied that the OSC had a role in determining
whether there was injury or potential injury to natural resources, when in
fact that is a sole determination of the trustee.
3. Damage assessments -- a. Qualifications of assessor. One commenter
suggested that pursuant to ' 300.615(c)(4), EPA should identify the
qualifications that must be demonstrated for an individual to assess damages
following 43 CFR Part 11.
The qualifications that must demonstrated for an individual to assess
damages are determined by the trustee. The Department of the Interior
regulations specify how to conduct a damage assessment in order to qualify for
the rebuttable presumption, but the qualifications of the person conducting
that assessment is a question for each trustee to determine according to the
needs of the trustee for the injured resources in question.
b. Negotiations. One commenter suggested that the following language,
start 55 FR 8791
which is similar to DOI's natural resource damage assessment rules, be
included in ' 300.615: "State and federal trustees are not required to conduct
a natural resource damage assessment to effectively participate in settlement
negotiations. State and federal trustees need not conduct a natural resource
damage assessment in order to agree to a covenant not to sue for natural
resource damages."
The preamble to the DOI regulations (at 53 FR 5169, February 22, 1988)
concerning natural resource damage assessments contains language noting that
it is not necessary to conduct a damage assessment in order to effectively
participate in settlement negotiations. EPA agrees with the DOI position and
further believes that such an assessment is not a prerequisite to a covenant
not to sue. Therefore, since the preamble to the DOI regulations provides the
requested change already, no change to the NCP rule language is necessary.
c. Duty to perform. A commenter felt that the statements in the Subpart
that the federal trustees "will" or "may" act pursuant to CERCLA section 107
and Clean Water Act (CWA) section 311(f)(5) attempt to water down the direct
statutory command in those provisions that the trustees "shall" assess damages
and carry out other trusteeship obligations. Another commenter suggested that
the language in '' 300.600(a) and 300.615(c) that is discretionary or unclear
should be changed to state that the trustees "shall" carry out their duties
established in CERCLA section 107(f) and CWA section 311(f) (5) .
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Section 107(f) (2) (A) confers authority on federal trustees to "act on
behalf of the public as trustees for natural resources under this Act and
under section 311" of the Clean Water Act and to "assess damages" for federal
natural resource injury, destruction or loss for purposes of CERCLA and
section 311 of the Clean Water Act. Neither CERCLA nor the Clean Water Act
require trustees to perform any other function. Other actions which the
trustees may perform pursuant to CERCLA and the Clean Water Act are
discretionary, to be performed as necessary on a case-specific basis.
The language in CERCLA section 107(f) and section 311(f)(5) of the Clean
Water Act providing that the trustee "shall" act as trustee or "shall" assess
damages does not require action by the trustee. Such language merely means
that the trustee or his delegee are the only persons authorized to act as
trustees or to assess damages. Performance of the functions of a trustee is
discretionary under CERCLA and the Clean Water Act, based on case-specific
circumstances. Therefore, final ' 300.615(c)(3) provides that trustees "may,
pursuant to section 107(f) of CERCLA or section 311(f)(5) of the Clean Water
Act, take the following or other actions as appropriate", including carrying
out damage assessments. And as noted earlier, a trustee may choose to act
under other authority in addition to sections 107 and 311.
d. Coordination. A commenter urged EPA to insert additional language
that encourages the lead agency to coordinate cleanup levels with natural
resource damage assessments to the greatest extent possible.
EPA has already done much of what the commenter asks in
300.430(b)(7)(proposed as ' 300.430(b)(6)). Pursuant to that section the lead
agency shall, if natural resources are or may be injured by the release,
ensure that state and federal trustees are promptly notified in order that the
trustees may initiate appropriate actions, including those identified in
Subpart G of this Part. The subsection further requires the lead agency to
seek to coordinate necessary assessments, evaluations, investigations, and
planning with state and federal trustees. As to coordination of cleanup
levels, EPA believes that the decision as to whether selected cleanup levels
satisfy natural resource trustee concerns is a decision for the trustee to
make.
4. Funding. A commenter suggested that EPA, consistent with legal
obligations, should construe sections 111(b)(2)(B) and 517(c) of SARA to allow
funding of natural resource damage assessments. The commenter urged EPA to
seek amendment of section 517, if it is not possible to provide funding under
current law. The commenter also noted that many states cannot carry out this
responsibility without financial support from the Fund.
Section 517(c) of SARA prohibits expenditures from the Fund to pay
trustees' claims for natural resources damage assessment and restoration of
natural resources. The SARA conference report states, "[T]he conference
agreement follows the House bill in deleting natural resource damage and
assessment claims as a Superfund expenditure purpose." H.R. 99-962, 99th
Congress, 2d Session, at 321 (October 3, 1986).
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As to the commenter's request that EPA seek amendment of SARA to permit
funding of natural resource damage assessments, EPA does not take positions on
proposed amendments to statutes in rulemaking proceedings.
5. Federal trustees - covenant not to sue. A commenter asserted that
while the preamble to the proposed rule mentions that the OSC/RPMs "shall
coordinate the federal trustees' participation in negotiations with PRPs as
provided under section 122(j)(1)" (53 FR 51461), the proposed rule does not
reflect the language in section 122 (j) (1) . The commenter suggested that a new
provision be included in ' 300.615 to provide for: (1) notification to
trustees by OSC/RPMs of negotiations with PRPS, and (2) covenants not to sue
for damages to natural resources under the trusteeship of a federal trustee.
The commenter asserted that the proposed NCP does not cover section 122
settlement provisions, but that consideration should be given to including the
requirement in section 122(j) regarding federal natural resource trustee
notification of proposed settlements with PRPs. The commenter added that
early decisions as to the nature and amount of involvement must be made on the
basis of available information, and that late notification and involvement may
interfere with the ability to pursue natural resource trust authorities under
CERCLA.
CERCLA section 122(j)(1) provides that "[W]here a release or threatened
release of any hazardous substance that is the subject of negotiations under
this section may have resulted in damages to natural resources under the
trusteeship of the United States, the President shall notify the federal
natural resource trustee of the negotiations and shall encourage the
participation of such trustee in the negotiations." The final rule ('
300.615(d)(2)) already provides for trustee participation in negotiations
between the United States and PRPs to obtain PRP-financed or PRP-conducted
assessments and restorations for injured resources or protection for
threatened resources. The final rule is consistent with statutory
requirements in CERCLA section 122(j).
The authority of the federal trustees contained in proposed and final
NCP ' 300.615(d)(2) to negotiate with a PRP already includes discretionary
authority to agree to a covenant not to sue for natural resource damages.
However, to clarify that authority EPA will revise ' 300.615(d)(2) to read
that federal trustees have authority to agree to covenants not to sue, as
appropriate. CERCLA section 122(j)(2) provides for such discretionary
covenants if the PRP agrees to undertake appropriate actions necessary to
protect and restore the natural resources damaged by the release or threatened
release of hazardous substances.
start 55 FR 8792
6. States. A commenter suggested that the lead agency should have the
responsibility for notifying state trustees of negotiations with PRPs, and
encouraging state trustees to participate in settlement negotiations. The
commenter suggested that ' 300.615(c) should be revised to acknowledge that
state trustees may participate in negotiations as well.
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Section 300.520 of the NCP implements CERCLA section 121(f)(1)(F).
Section 300.520(a) of the NCP already requires EPA to notify states of
response action negotiations to be conducted by EPA with PRPs during each
fiscal year. After notification, the state then has the responsibility to
notify its trustees of such negotiations and to encourage their participation.
Pursuant to
300.520(b), the state, in turn, must notify EPA of such negotiations in
which it intends to participate. Finally, pursuant to ' 300.520(c), the state
may be a party to such settlements. Given the foregoing provisions, EPA
believes the recommended rule change is not necessary.
7. Damages. A commenter suggested that the word "damage" should be
changed to "injury" when referring to "damage" to natural resources. While
the relevant statutes and regulations use the terms "damages" and "injury" in
different contexts, EPA uses the terms as follows for purposes of the NCP.
"Damages" means the amount of money sought by the natural resource trustees as
compensation for injury to, destruction of, or loss of natural resources, as
set forth in section 107(a) or 111(b) of CERCLA. Pursuant to CERCLA section
107(a), damages also include the reasonable costs of assessing injury,
destruction or loss of natural resources. "Injury" means a measurable adverse
change, either long- or short-term, in the chemical or physical quality or the
viability of a natural resource resulting either directly or indirectly from
exposure to a discharge of oil or the release of a hazardous substance.
"Injury" encompasses injury, destruction, or loss of natural resources.
Final rule: Proposed '' 300.615, 300.135(j ) , 300.160(a)(3), 300.305(d),
300.315(c), 300.410(g) and 300.430(b) (7) are revised as follows:
1. Section 300.615(a) has been revised to read: "Where there are
multiple trustees ..., they should coordinate and cooperate in carrying out
these responsibilities."
2. In final ' 300.615(b), the word "damages" has been changed to
"inj uries."
3. The introduction to ' 300.615(c) has been changed to read as
follows: "Upon notification ... trustees may ... pursuant to section 107(f) of
CERCLA or section 311(f)(5) of the Clean Water Act take the following or other
actions as appropriate:...."
4. The introduction to ' 300.615(d) is revised to read: "The authority
of federal trustees includes, but is not limited to the following
actions:...."
5. Section 300.615(d)(2) has been revised to read: "Participate in
negotiations ... threatened resources and to agree to covenants not to sue,
where appropriate."
6. The introduction to ' 300.615(e) has been revised to read: "Actions
which may be taken by any trustee pursuant to section 107(f) of CERCLA or
section 311(f)(5) of the Clean Water Act include, but are not limited to, any
of the following: * *
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7. Sections 300.135(j) , 300.305(d), 300.410(g) and 300.430(b)(7) are
revised to delete the phrase "as appropriate" and to state that "the OSC or
RPM shall seek to coordinate all response activities with the natural resource
trustees . "
8. A new sentence is added to the end of ' 300.315(c) on OSCs making
information available to trustees.
9. The word "trustees" is added to ' 300.160(a) (3)
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SUBPART H — PARTICIPATION BY OTHER PERSONS
The focus of this subpart is on those authorities of CERCLA that allow
persons other than governments to respond to releases and to recover those
response costs. Although this subpart is new, it revises and consolidates
provisions from current NCP
300.25 on Nongovernment Participation and ' 300.71 on Other Party Responses
into one place in the NCP. Subpart H also incorporates the new authorities
from CERCLA, as amended, which address participation by other persons. The
following discusses comments received on the proposed Subpart H and EPA's
responses.
Name: Section 300.700(c). Consistent with the NCP.
Proposed rule: The proposed section revised and consolidated provisions from
the 1985 NCP ('' 300.25 and 300.71). The proposed section provided that any
person may undertake a response action to reduce or eliminate a release of a
hazardous substance. It also set out a list of those NCP provisions for which
compliance would be required in order for a response action by "other persons"
(i.e., persons who are not the federal government, a state, or an Indian tribe)
to be considered "consistent with the NCP" for purposes of cost recovery
actions under CERCLA section 107.
Response to comments: 1. Substantial compliance. EPA received diverse
comments on its proposal to set out requirements that must be met by private
parties in order for their actions to be "consistent with the NCP" for the
purposes of cost recovery under CERCLA section 107. Some commenters approved
of the list of requirements, noting that such a list affords parties some
certainty as to what type of response actions will qualify for cost recovery
under section 107; indeed, commenters suggested that they would not undertake
cost recovery actions if they did not have clear guidance on what constitutes
"consistency with the NCP."
On the other hand, an even greater number of commenters objected to EPA's
proposal to define "consistency with the NCP" as a long list of largely
procedural requirements, and urged EPA not to address the issue. A large
number of commenters expressed the concern that defendants in private cost
recovery litigation will seize on EPA's list as the definitive criteria for
evaluating consistency with the NCP, and search for even minor discrepancies
between a private party's actions and the criteria in an effort to block a cost
recovery action. The effect will be to discourage private party cleanups.
They request that EPA leave the question of "consistency with the NCP" to case-
by-case adjudication in the federal courts. However, assuming the NCP does
address this issue, they suggested that the rule should be clear that all of
the listed elements of NCP consistency need not necessarily be met in a given
case, and that substantial compliance with a given element is sufficient.
Several other commenters argued that EPA's criteria do not belong in the
NCP as binding rules. A more appropriate forum is a non-binding guidance
document, which can be applied to the facts of a particular action. Another
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commenter suggested that "consistency with the NCP" does not require the
replication of the entire governmental cleanup process. Activities that
contribute to an effective response action should qualify for reimbursement,
even if they do not follow precisely each of the requirements listed in Subpart
H or do not result in a complete cleanup.
In response, EPA is sympathetic to the perspectives expressed in the
comments. EPA believes that it is important to encourage private parties to
perform voluntary cleanups of sites, and to remove unnecessary obstacles to
their ability to recover their costs from the
start 55 FR 8793
parties that are liable for the contamination. At the same time, EPA believes
it is important to establish a standard against which to measure cleanups that
qualify for cost recovery under CERCLA, so that only CERCLA-quality cleanups
are encouraged. EPA has attempted to accomplish both of these somewhat
divergent goals.
EPA has continued the tradition of identifying the universe of
requirements which are potentially relevant to private party actions (this
would not include requirements that apply to intergovernmental consultation,
the waiver of applicable requirements of other laws, and other provisions that
are not appropriate for consideration by private parties). However, EPA agrees
with commenters that this list should not be construed as a fixed list of
requirements that must be met in order for a party to qualify for cost recovery
under CERCLA section 107(a)(4)(B). Thus, in the final rule (' 300.700(c)(3)),
strict compliance with that list of NCP provisions is not required in order to
be "consistent with the NCP"; the list is provided in
300.700(c) (5) — (7) as guidance to private parties on those requirements that
may be pertinent to a particular site.
Instead, in evaluating whether or not a private party should be entitled
to cost recovery under CERCLA section 107(a)(4)(B), EPA believes that
"consistency with the NCP" should be measured by whether the private party
cleanup has, when evaluated as a whole, achieved "substantial compliance" with
potentially applicable requirements, and resulted in a CERCLA-quality cleanup.
(CERCLA section 107(a) (4) (B) requires that the private party also show that
the costs incurred were "necessary" cleanup costs.)
EPA believes that this formulation achieves two critical goals. First,
it responds to commenters' concerns that rigid adherence to a detailed set of
procedures should not be required in order to recover costs under CERCLA for
private party cleanups. In addition, the approach taken today protects EPA's
There are a number of NCP requirements that do not make sense for private
parties, such as the requirements for state assurances (' 300.510), or other
provisions related to use of the Fund; similarly, there are self-imposed
restrictions on governmental action that are not relevant to private actions,
such as the requirement that a site be listed on the NPL before Fund-financed
remedial action may be taken (' 300.425(b)(1)).
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interest in ensuring that the benefit of a right of action under CERCLA section
107(a) (4) (B) should only be available for environmentally sound cleanups
consistent with CERCLA requirements; in essence, the more lenient "substantial
compliance" test should not be an invitation to perform low quality cleanups.
In order to a achieve a "CERCLA-quality cleanup," the action must satisfy
the three basic remedy selection requirements of CERCLA section 121(b) (1) --
i.e., the remedial action must be "protective of human health and the
environment," utilize "permanent solutions and alternative treatment
technologies or resource recovery technologies to the maximum extent
practicable," and be "cost-effective" -- attain applicable and relevant and
appropriate requirements (ARARs) (CERCLA section 121(d) (4)), and provide for
meaningful public participation (section 117). EPA believes that these
statutory requirements are necessary to the achievement of a CERCLA-quality
cleanup. (Although public participation is not an explicit requirement in
section 121 on remedy selection, EPA believes that it is integral to ensuring
the proper completion part of any CERCLA cleanup action, as discussed below.)
These requirements are not new additions from the proposed rule. Under the
proposal, private parties were required to strictly comply with the detailed
provisions of the NCP, including provisions codifying these statutory mandates
(see final rule '' 300.430(f) (1) (ii) (A) (protectiveness), (B) (ARARs), (D)
(cost-effectiveness), (E) (permanence/treatment), and ' 300.430(f)(3) (public
participation)). EPA has simply issued a substantial compliance test while at
the same time identifying several requirements that must be met in order to
achieve substantial compliance.
EPA's decision to require only "substantial" compliance with potentially
applicable requirements is based, in large part, on the recognition that
providing a list of rigid requirements may serve to defeat cost recovery for
meritorious cleanup actions based on a mere technical failure by the private
party that has taken the response action. For example, EPA does not believe
that the failure of a private party to provide a public hearing should serve to
defeat a cost recovery action if the public was afforded an ample opportunity
for comment. A substantial compliance test is appropriate as well in light of
the difficulty of judging which potentially relevant NCP provisions must be met
in any given case. For example, in most cases, a full range of alternative
remedial options should be analyzed in detail as part of the feasibility study
("FS"), yet in appropriate cases, a "focused" FS -- under which fewer
alternative options would be studied -- may be performed, consistent with the
NCP (see
300.430(e) (1)). EPA also recognizes that private parties generally will have
limited experience in performing cleanups under the NCP, and thus may be
unfamiliar with the detailed practices and procedures in this rather long and
complex rule; an omission based on lack of experience with the Superfund
program should not be grounds for defeating an otherwise valid cost recovery
action, assuming the omission does not affect the quality of the cleanup.
EPA does not believe that this substantial compliance standard will lead to
low quality cleanups, especially in light of the express requirement for a
"CERCLA-quality cleanup." However, it should be noted that even where a site
has been cleaned up "consistent with the NCP," EPA has the authority under
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The decision to define a substantial compliance standard for private
party cost recovery actions under CERCLA section 107(a)(4)(B) is within EPA's
discretion. CERCLA section 107(a) (4) (B) provides that private persons may
recover only those costs "incurred ... consistent with the NCP," and section
105(c) provides that the President shall promulgate and revise the NCP; thus,
the statute directs the President to establish requirements for private cost
recovery actions. In exercising that authority, EPA could have taken several
different approaches in the NCP: establish identical requirements for private
and governmental actions; establish a subset of NCP provisions with which
private party cleanups must comply; or alternatively, set a general standard
of compliance (e.g., "substantial compliance") with certain requirements for
private party cleanups. In response to comments, EPA has today elected to
pursue the third option.
EPA attempted to identify those NCP provisions with which compliance
would not be necessary to meet the "substantial compliance" test, but concluded
that a hard line cannot be drawn on these questions, given the considerable
variability in types of response actions, potential ARARs, communities, etc.
EPA found that what may be a significant deviation from procedures under one
set of circumstances may be less serious in another (for example, some types of
contaminants may be susceptible to only a limited number of remedial
technologies, resulting in a more limited
start 55 FR 8794
analysis of alternatives, and some communities may express no interest in a
site, resulting in fewer public meetings). Thus, this determination is best
left to the courts for a case-by-case determination. A private party can, of
course, eliminate any risk or uncertainty by meeting the full set of
requirements identified by EPA as potentially relevant to private actions (see
'' 300.700 (c) (5)- (7) ) .
2. Not inconsistent with the NCP. One commenter asked why
300.700(c) retains the language "not inconsistent with the NCP" when EPA
attempted to revise this language elsewhere. Other commenters opposed EPA's
proposal to delete the requirement in the current NCP (' 300.71(a)(2)) that
government response actions must comply with the same list of NCP provisions as
private parties in order to be "not inconsistent with the NCP." They argued
that private party "consistency" requirements should be streamlined and apply
to both private parties and governmental entities. Another commenter suggested
that a section in the NCP on the meaning of the phrase "not inconsistent with
the NCP," would offer significant clarification on what constitutes CERCLA
responses and lead to the most effective use of limited federal funds at all
sites. Several commenters claimed that EPA applies a double standard by
specifying steps a private party must take but not those that a governmental
CERCLA to take appropriate action at the site should future releases be
discovered or future conditions so warrant. See CERCLA sections 104(a)(1),
105(e), 121 (c) and 122(f) .
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body must take.
In response, CERCLA section 107(a) (4) specifies a different burden of
proof for actions brought by the federal government, states, or Indian tribes
than for actions brought by private parties. Governmental response costs may
be recovered from responsible parties unless they are shown to have been
incurred "not consistent with the NCP." CERCLA section 107(a)(4)(A). By
contrast, private parties may only recover other "necessary" costs incurred
"consistent with the NCP." The final rule reflects this statutory distinction.
As to the commenters' request that EPA further define when costs are "not
inconsistent with the NCP," several points are important to note. First, the
CERCLA statute itself confirms that the President should not be held to a
standard of strict adherence to all provisions of the NCP. Section 121(a)
states:
"The President shall select appropriate remedial actions determined to be
necessary to be carried out under section 104 or secured under section
106 which are in accordance with this section and, to the extent
practicable, the national contingency plan, and which provide for cost-
effective response...." [Emphasis added.]
The legislative history confirms that this section has special meaning in the
context of the government's right to recover costs "not inconsistent with the
NCP." As Senator Chafee stated in the debate over the 1986 SARA Amendments,
"The legislation states that remedial actions selected by the President
shall, to the extent practicable, comply with the National Contingency
Plan [NCP]. This language is intended to assure that alleged failures to
comply with the NCP shall not be available as a defense to any liability
in an enforcement proceeding brought under section 106 or 107. " (Emphasis
added.)
132 Cong.Rec. S14925 (daily ed., Oct. 3, 1986).
Consistent with this language, EPA does not believe that immaterial or
insubstantial deviations from the detailed set of NCP provisions should serve
to defeat a cost recovery action, whether federal or private (although it may
influence the amount of costs allowed). At the same time, EPA believes that
given the variability of circumstances at Superfund sites, it is impossible to
define all cases (or to establish a fixed rule) for which non-compliance would
be material. Thus, whether or not governmental costs can be shown to be "not
inconsistent with the NCP" should be judged by a review of the cleanup action
as a whole, not based on a simple review of the cleanup against the list of NCP
provisions. EPA believes that the application of these principles is properly
The statement by Sen. Chafee goes on to note that "[t]he language is not
intended to provide any independent authority to EPA or other agencies to fail
to apply, to overlook, ignore or waive any standard, requirement, criteria or
limitation established under the law." Id.
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reserved to the courts for resolution on a case-by-case basis.
The concept that de minimis and harmless deviations from specific NCP
provisions should not defeat a cost recovery action is consistent with long-
standing judicial principles of harmless error and materiality. It is also
consistent with the tenor and intent of the CERCLA statute, that parties who
are liable for the contamination should be held responsible for remediating it;
where a governmental or private party undertakes the cleanup (in the face of a
lack of action by the responsible party), it would be inequitable to allow the
responsible party to use minor procedural discrepancies to defeat reimbursement
for an environmentally sound cleanup.
3. Role of the courts. Several commenters asserted that the criteria
proposed by EPA attempted to limit the discretion of federal courts in
determining what constitutes substantial compliance with the NCP for making
CERCLA cost recovery awards. They argue that EPA should not by regulation
attempt to establish matters that may be in dispute entirely between private
parties.
In response, section 105 of CERCLA provides EPA with considerable
discretion in establishing its plan for responding to releases of hazardous
substances, pollutants and contaminants. There is no requirement that EPA
promulgate a rule that would contain identical standards for governmental and
private party response actions, and indeed, as discussed above, that would not
make sense in areas such as intergovernmental coordination and Fund balancing.
EPA has also noted that due to the variability of site circumstances, some
provisions may or may not be applicable in specific cases, and the failure to
comply with one or more provisions may or may not be material. Thus, this rule
defines actions as "consistent with the NCP" for the purposes of section
107(a)(4)(B), when the private party cleanup, evaluated as a whole, is found to
have achieved "substantial compliance" with specified requirements and resulted
in a CERCLA-quality cleanup; although a provision-by-provision comparison is
not required, EPA has provided a list of those NCP sections that are
potentially relevant to private persons. Thus, the final rule provides a
standard against which to measure "consistency with the NCP," but does not
eliminate the very important role of the courts in deciding, on a case-specific
basis, what costs should be awarded to the party that has undertaken the
cleanup.
As to the comment that EPA should not issue regulations on this matter,
EPA disagrees that the interpretation of section 107(a)(4)(B) is a matter
"entirely between private parties." First, the government has a strong
interest in ensuring that cleanup actions that derive a benefit from CERCLA
section 107(a)(4)(B) -- a statute under the charge of EPA -- are performed in
an environmentally sound manner; thus, it is appropriate to provide a standard
or measure of consistency with the NCP. EPA also believes that it is an
important public policy to encourage private parties to voluntarily cleanup
sites, and to remove unnecessary obstacles to their recovery of costs.
Further, as noted above, CERCLA directs the President to promulgate and revise
NCP requirements (section 105(c)), and then directs that those requirements
should be used as the standard for private cost
start 55 FR 8795
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recovery (section 107(a) (4)); thus, Congress contemplated that EPA would issue
standards to be used for cost recovery actions.
4. Retroactivity. Some commenters expressed the concern that PRPs may
attempt to impose the new definition of "consistency with the NCP" on private
cleanups that are already complete or underway. They assert that it should be
made clear that the rule does not apply to private response actions initiated
prior to the effective date of the revised NCP.
In response, EPA does not believe that it is appropriate to grandfather
cleanups that are already "underway." Such a position would result in an
exemption from this rule for actions that were initiated prior to the effective
date, but which may continue for years (such as long-term ground-water
remediation actions). Further, EPA does not believe that this issue will pose
a serious problem to private parties for several reasons. First, the rule's
requirement of "substantial compliance" with potentially applicable NCP
requirements affords private parties some latitude in meeting the full set of
revised NCP provisions. Second, private parties have been on notice for over a
year that EPA intended to require compliance with the principal mandates of
CERCLA -- those required for a "CERCLA-quality cleanup," as discussed above --
as a condition for being "consistent with the NCP." (See CERCLA section
105(b), directing EPA to incorporate the SARA requirements into the NCP; and
the December 21, 1988 proposed NCP (at ' 300.700(c) (3) (i) (H) , 53 FR at 51513),
proposing to list among the requirements for "consistency with the NCP"
compliance with '' 300.430(f) (3) (ii) (protectiveness and ARAR compliance),
(f) (3) (iii) (permanence and treatment, and cost-effectiveness), and (f) (2)
(public participation) (53 FR at 51507) ) .
Finally, the requirement for "consistency with the NCP" has been a
precondition to cost recovery under CERCLA section 107 since the passage of the
statute in 1980, and pursuant to the 1985 NCP, consistency with the NCP was
measured by compliance with a detailed list of NCP requirements; thus, on-going
actions should already comply with the 1985 provisions.
5. Public participation. One commenter asserted that EPA is misapplying
statutory requirements by stating that private parties must engage in the full
panoply of public participation procedures under CERCLA, even though the
statute imposes these requirements only on EPA. Because no governmental
actions are involved, no public process should be required as a precondition of
cost recovery.
EPA disagrees. Public participation is an important component of a
CERCLA-quality cleanup, and of consistency with the NCP. The public -- both
PRPs and concerned citizens -- have a strong interest in participating in
cleanup decisions that may affect them, and their involvement helps to ensure
that these cleanups -- which are performed without governmental supervision --
are carried out in an environmentally sound manner. Thus, EPA has decided that
providing public participation opportunities should be a condition for cost
recovery under CERCLA. The rule does not, however, require rigid adherence to
a set of procedural requirements. For instance, ' 300.700(c) (6) (proposed NCP
300.700(c)(3)(ii)(B)) provides that state or local public participation
procedures may be followed, consistent with the NCP, if they provide a
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substantially equivalent opportunity for public involvement.
6. CERCLA section 103 reporting requirement. Another commenter suggested
that EPA has misapplied the statutory notification requirements in the proposed
NCP. According to the commenter, the proposal implies that any violation of
CERCLA's requirement to report certain hazardous substance releases to the
National Response Center (NRC) under CERCLA section 103(a) is grounds for
holding a subsequent response action inconsistent with the NCP. The commenter
suggests that there is no substantive connection between the reporting
requirement and the adequacy of a response action.
In response, the NCP requires any person in charge of a facility or
vessel to notify the NRC of any releases of hazardous substances into the
environment over a defined reportable quantity (see ' 300.405(b)). EPA
believes that this NCP requirement is integral to EPA's decision as to whether
a government-funded or -supervised cleanup is necessary at a site. Thus, the
failure to report such releases to the NRC is an appropriate factor to consider
in evaluating whether a private party has acted consistent with the NCP.
7. Specific comments on consistency with the NCP. One commenter
suggested that rather than cross-referencing overly broad sections of the NCP
to describe compliance for cost recovery purposes, ' 300.700(c) (3) should
repeat or paraphrase each requirement that must be met.
As explained above, the rule attempts to aid private parties by
identifying those provisions that may be relevant to voluntary cleanup actions.
Repeating each such provision in ' 300.700 would significantly complicate and
lengthen the section unnecessarily, as the reader is clearly referred to the
appropriate sections by citation. Further, EPA has made clear that rigid
adherence to every potentially relevant provision is not required in order to
be consistent with the NCP.
Another commenter noted that for several of the cross-referenced
sections, determining which subsection is "pertinent to the particular response
chosen for the particular facility" is very difficult.
In response, two general points require clarification. First, as a
threshold matter, it appears that the commenter may be confused by the roles
and responsibilities of "other persons" and the "lead agency." In a private
party response action, the private party may perform most of the functions of a
lead agency, except of course, waivers of applicable laws, permit waivers, and
functions related to use of the Fund (EPA has identified those sections of the
NCP that are potentially relevant to private party cleanups in ' 300.700(c) (5)-
(7)); there is no support agency in a private party cleanup action.
It is also important to repeat that rigid compliance with every
potentially applicable NCP provision is not required to establish that a
private cleanup action was "consistent with the NCP"; rather, the substantial
compliance test outlined above should be applied. With these two caveats, EPA
has attempted to respond to the commenters' concerns regarding the potential
applicability of particular sections of the NCP to private party cleanup
actions.
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The following are specific examples raised by the commenter where more
specificity on what is required for recovery under section 107 is requested.
EPA's response is included in each section.
a. Natural resource trustees. Must private parties coordinate with
trustees of affected natural resources to determine the injury to these
resources (' 300.160(a)(3)) or to initiate appropriate actions (' 300.410(g))?
In response, ' 300.160(a)(3) requires the communication of information to
natural resource trustees that may assist in the determination of actual or
potential injury to the resources. Section 300.410(g) requires notification to
the trustees when natural resources have been or are likely to be damaged, and
requires the OSC or lead agency to seek to coordinate, as appropriate, with
trustees for the performance of natural resource damage assessments,
evaluations, investigations, and
start 55 FR 8796
planning. Both sections are within the universe of requirements that may
potentially apply to private party cleanup actions, and compliance with them
may be important to ensuring a cleanup consistent with the NCP.
b. Technology. What precisely must private parties do to "encourage the
involvement and sharing of technology by industry and other experts" ('
300.400 (c) (7) )?
In response, ' 300.400(c) (7) requires the lead agency, to the extent
practicable, to encourage the involvement and sharing of technology by industry
and other experts. EPA believes that other persons should seek the most
appropriate technology and expertise for a response action.
c. ARARs and TBCs. Must private parties coordinate with the lead and
support agencies to identify ARARs, and ensure that the two agencies notify
each other of the ARARs they identified
('' 300.400(g)(1) and (5))? What about TBCs (' 300.400(g)(3))?
In response, '' 300.400(g)(1) and (2) require the identification of
applicable requirements, and relevant and appropriate requirements,
respectively, and specify the criteria upon which to determine whether
requirements are ARARs. Section 300.400(g)(5) requires the lead agency and
support agencies to notify each other as to identified ARARs. Although these
sections provide no specific consultation process for coordination of ARARs
where there is no support agency, EPA encourages private parties to notify the
agency responsible for oversight, if any, of the ARARs they have identified, in
order to ensure that such requirements have been properly identified, and in
order to ensure that a CERCLA-quality cleanup will be achieved (which includes
the attainment of ARARs). Section 300.400(g)(3) simply states that lead and
support agencies may, as appropriate, identify TBCs for a particular release
and defines what TBCs are; here again, however, it may be advisable for private
parties to seek the advice of the relevant agency as to which guidance
documents should usually be followed.
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d. Engineering evaluation/cost analysis (EE/CA). If PA and SI reports
are required for removals, why isn't an EE/CA also required (' 300.415(b) (4))?
In response, the preamble to the proposed rule correctly excluded
300.415(b) (5) -- relating to time and dollar limitations on removal actions --
from the list of sections that may be relevant to cleanups by other persons (53
FR at 51461). However, due to a typographical error, proposed rule
300.700(c) (3) (i) (F) mistakenly excluded ' 300.415(b) (4) -- relating to EE/CAs
-- from the list of potentially relevant provisions. This error has been
corrected in today's final
' 300.700 (c) (5) (vi) .
e. ARARs - exigencies. How does the private party determine that the
"exigencies of the situation" prevent the attainment of ARARs during removals
(' 300.415(j)(renumbered as ' 300.415(i) in the final rule)?
In response, one of the requirements for cost recovery under CERCLA
section 107(a)(4)(B), as set out in today's rule, is to attain a CERCLA-quality
cleanup, which includes the requirement to attain ARARs -- both "applicable
requirements" and "relevant and appropriate requirements." However, the NCP
allows governmental agencies to attain or waive ARARs; in the private context,
this possibility is more limited.
Governmental actions are taken under the authority of CERCLA, and
therefore may invoke ARARs waivers under CERCLA section 121(d)(4). However,
private party actions are not carried out under CERCLA authority but simply
seek to take advantage of a right of cost recovery provided under CERCLA
section 107 for certain types of actions; therefore, waivers of applicable
requirements of federal or state law are unavailable in such private party
cleanups. Similarly, the concept of complying with applicable requirements to
the extent practicable for removal actions, applies only to actions taken or
secured by the President (or his authorized representative). (In emergency
situations where an immediate response action is required by a private party,
noncompliance with an applicable requirement should not necessarily bar a claim
for cost recovery.)
Private parties shall also comply with relevant and appropriate
requirements. However, relevant and appropriate requirements do not legally
apply of their own force to the private party actions (see ' 300.5); thus,
where one of the waivers in ' 300.430(f)(1)(ii)(C) can be justified, it may be
appropriate for a private party to waive a relevant and appropriate
requirement. Similarly, when undertaking removal actions, a private party need
only comply with relevant and appropriate requirements "to the extent
practicable"; best professional judgment should be used in determining which
relevant and appropriate requirements can practicably be met. Private parties
also have some discretion to decide whether requirements are relevant and
appropriate under the circumstances of the release, using the criteria set out
in ' 300.400(g)(2).
8. Recovery pursuant to other federal or state law. A commenter
suggested that it should be made clear in
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300.700(c)(1) and (2) that those sections only apply to section 107(a) cost
recovery actions and not to cost recovery actions taken pursuant to other
federal or state law. The commenter believes that the requirement of
consistency with the NCP for tens of thousands of non-NPL, non-CERCLA sites and
spills for entitlement to cost recovery from responsible parties will
discourage many cleanups normally performed under state statutes.
Another commenter believed that the NCP should recognize that cleanups
done pursuant to non-CERCLA federal or state authority can be consistent with
the NCP. This could be accomplished in one or more of the following ways.
First, as part of its deferral policies, the NCP could state that cleanups
qualifying for deferral are presumptively consistent with the NCP. The
commenter stated that deferral of an NPL site to a state government should mean
that the remedial action is considered to be in conformance with the NCP for
the purpose of cost recovery. This approach would provide an incentive for
prompt settlement. Second, ' 300.700(c) could be revised to clarify that the
list of NCP provisions with which a private cost recovery plaintiff must comply
includes the substantially similar provisions of other authorities.
In response to the first comment, it is important to note that CERCLA
section 107(a)(4)(B) does not require private parties to conduct cleanups
consistent with the NCP; rather, it establishes a right of action under CERCLA
for cost recovery in those cases where non-governmental parties have incurred
necessary response costs consistent with the NCP. The result of not meeting
this standard is that cost recovery under CERCLA may not be available; however,
this does not mean that the action may not proceed, or that cost recovery may
not be available under other federal or state law. Of course, even if a party
takes a cleanup action under an authority other than CERCLA (e.g., RCRA
corrective action), it may have a right of cost recovery under CERCLA section
107 if the action was a necessary response to a release of hazardous
substances, and was performed consistent with the NCP.
On the deferral issue, the decision by EPA to defer a site from listing
on the NPL for attention by another authority does not represent a
determination that the response action to be taken will presumptively be
consistent with the NCP. Indeed, EPA policy on deferral
start 55 FR 8797
contemplates situations in which sites that have been deferred may still be
listed on the NPL for attention under CERCLA, e.g., if the owner/operator
proves to be unwilling or unable to accomplish the cleanup. See, e.g., 53 FR
30005 (August 9, 1988) . Each response action taken under another authority
(e.g., RCRA) for which cost recovery is sought under section 107(a)(4)(B) must
be justified on a case-by-case basis. As to specific comments on a policy of
deferral to states, EPA has not made a decision as to whether, or under what
circumstances, current deferral policies should be expanded to include deferral
to states. EPA will consider all comments concerning deferral to a state
authority or a non-CERCLA federal authority separately from the NCP.
9. Compliance with state standards/non-ARARs. A commenter asked, if a
state seeks to require additional remediation, in excess of that required by
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EPA (for example, in a section 106 order or a section 122 consent decree), will
such remediation be deemed to be excessive, inconsistent with the NCP, and not
available for cost recovery under CERCLA section 107(a) (4) (A)?
In response, there may be situations in which additional remediation,
while not "required" by the NCP, is "not inconsistent with the NCP"; at the
same time, there may be cases where such additional remediation is inconsistent
with the NCP. Such a determination must be made on a case-by-case basis,
considering the facts of each case. The issue is too complex to be resolved by
a simple statement in the final NCP rule.
10. Consistency with the NCP — section 106/section 122 consent decrees.
A commenter alleged that there is a double standard for site cleanups'
consistency with the NCP, one for section 106 orders or section 122 consent
decrees, another for other persons to be consistent with the NCP, with
extensive technical and public participation requirements, many of which may
not be a part of a potential section 106 order or section 122 consent decree.
Another commenter charged that the proposal would create a non-rebuttable
presumption that severely disadvantages defendants in private cost recovery
actions.
In response, the final rule requires only "substantial compliance" with
those potentially applicable NCP requirements, and a CERCLA-quality cleanup, in
order for a private party action to be consistent with the NCP for cost
recovery purposes; thus, the commenters' concerns (regarding non-rebuttable
presumptions and a stricter standard for private party actions) have largely
been addressed. As to section 106/122 orders or decrees, those documents
implement remedies that have been selected in accordance with CERCLA and the
NCP, and they contain the cleanup standards necessary for consistency with the
NCP. EPA believes that defendants will have acted "consistent with the NCP"
when they comply with a section 106 order or a section 122 consent decree.
11. Preauthorization. Section 300.700(d) provides a process under which
EPA may, in its discretion, preauthorize Fund reimbursement for necessary
response costs incurred by private parties as a result of carrying out the NCP.
In order to qualify for preauthorization, the requesting party must establish,
inter alia, that the action will be "consistent with the NCP"; this showing
should be site-specific, based on an evaluation of the list of potentially
applicable NCP provisions. Further, where a PRP seeks preauthorization, the
rule provides that the action must be carried out pursuant to an order or
settlement agreement with EPA. In both cases, EPA's interpretation of
"consistency with the NCP" for the purpose of CERCLA section 107(a)(4)(B) would
not override any site-specific requirement as part of the preauthorization or
enforcement processes.
12. Waivers. As discussed above, certain provisions of the NCP (and of
the statute) are not appropriate to private party response actions for which
cost recovery may be sought under CERCLA. These include the permit waiver in
CERCLA section 121(e) (1) (' 300.400(e)) and the waiver of applicable federal or
state requirements in CERCLA section 121(d)(4) (NCP
300.430(f)(1)(ii)(B)). The statute makes clear that those waiver provisions
are reserved for actions carried out by the President (or his delegate) or by a
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state or tribe under CERCLA section 104(d)(1), or by a party pursuant to an
order or decree under CERCLA section 106 or 122. The final rule has been
revised to make clear that private parties that qualify for cost recovery under
CERCLA section 107 are not entitled to the permit waiver of CERCLA section
121(e)(1), and may not invoke the waivers in CERCLA section 121(d)(4) for
applicable requirements, although "relevant and appropriate" requirements may
be waived upon a proper showing under ' 300.430(f)(1)(ii)(C) of this rule.
Final rule: The proposed rule has been revised as follows:
1. In order to more accurately reflect the language of CERCLA sections
107(a)(4)(A) and (B), '' 300.700(c)(1) and (2) are revised to read:
(1) Responsible parties shall be liable for all response costs
incurred by the United States government or a state or an Indian tribe
not inconsistent with the NCP.
(2) Responsible parties shall be liable for necessary costs of
response actions to releases of hazardous substances incurred by any
other person consistent with the NCP.
2. Consistent with the response to comment discussed above, the list of
NCP provisions that are potentially applicable to private parties has been
placed in new '' 300.700(c) (5) — (7), and consistency with the NCP has been
defined in revised
' 300.700(c)(3) and new ' 300.700(c)(4). Revised '' 300.700(c)(3) through (8)
are as follows:
(3) For the purpose of cost recovery under section 107(a) (4) (B) of
CERCLA:
(i) A private party response action will be considered "consistent
with the NCP" if the action, when evaluated as a whole, is in substantial
compliance with the applicable requirements in paragraphs (5) and (6) of
this section, and results in a CERCLA-quality cleanup;
(ii) Any response action carried out in compliance with the terms of
an order issued by EPA pursuant to section 106 of CERCLA, or a consent
decree entered into pursuant to section 122 of CERCLA, will be considered
"consistent with the NCP."
(4) Actions under ' 300.700(c)(1) will not be considered
"inconsistent with the NCP," and actions under
300.700(c)(2) will not be considered not "consistent with the NCP,"
based on immaterial or insubstantial deviations from the provisions of 40
CFR Part 300.
(5) The following provisions of this Part are potentially applicable
to private party response actions:
(i) Section 300.150 (on worker health and safety);
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(ii) Section 300.160 (on documentation and cost recovery);
(iii) Section 300.400(c)(1), (4), (5), and (7) (on determining the
need for a Fund-financed action); (e) (on permit requirements) except
that the permit waiver does not apply to private party response actions;
and (g) (on identification of ARARs) except that applicable requirements
of federal or state law may not be waived by a private party;
(iv) Section 300.405(b), (c), and (d) (on reports of releases to the
NRC) ;
(v) Section 300.410 (on removal site evaluation) except paragraphs
(e)(5) and (6);
(vi) Section 300.415 (on removal actions) except paragraphs (a)(2),
(b) (2) (vii), (b) (5), and (f); and including ' 300.415 (i) with regard to
meeting ARARs where practicable except that private party removal actions
must always comply with the requirements of applicable law;
(vii) Section 300.420 (on remedial site evaluation);
(viii) Section 300.430 (on RI/FS and selection of remedy) except
paragraph (f)(1)(ii)(C)(^) and that applicable requirements of federal or
state law may not be waived by a private party;
(ix) Section 300.435 (on RD/RA and operation and maintenance).
start 55 FR 8798
(6) Private parties undertaking response actions should provide an
opportunity for public comment concerning the selection of the response
action based on the provisions set out below, or based on substantially
equivalent state and local requirements. The following provisions of
this Part regarding public participation are potentially applicable to
private party response actions, with the exception of administrative
record and information repository requirements stated therein:
(i) Section 300.155 (on public information and community relations);
(ii) Section 300.415(m)(on community relations during removal
actions);
(iii) Section 300.430(c) (on community relations during RI/FS) except
paragraph (c)(5);
(iv) Section 300.430(f)(2), (3), and (6)(on community relations
during selection of remedy); and
(v) Section 300.435(c) (on community relations during RD/RA and
operation and maintenance).
(7) When selecting the appropriate remedial action, the methods of
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remedying releases listed in Appendix D of this Part may also be
appropriate to a private party response action.
(8) Except for actions taken pursuant to CERCLA sections 104 or 106
or response actions for which reimbursement from the Fund will be sought,
any action to be taken by the lead agency listed in paragraphs (c)(5)
through (c)(7) may be taken by the person carrying out the response
action.
Name: Section 300.700(c) . Actions under CERCLA section 107(a) .
Proposed rule: The proposed rule summarized the various authorities under
CERCLA that are available to recover the costs of response actions, including a
section 107(a) cost recovery action. Proposed ' 300.700(g) also provided that
implementation of response measures by PRPs or by any other person does not
release those parties from liability under section 107(a), except as provided
in a settlement under section 106 or 122 of CERCLA or a federal court judgment.
Response to comments: 1. Settlement policies — a. Mixed funding. One
commenter suggested that EPA should become more forthcoming in providing mixed
funding in support of settlement agreements. Greater use of this authority
would encourage settlement of cases by cooperative parties, even where they do
not make up a majority of the PRPs.
EPA supports mixed funding arrangements and is sympathetic to the
commenter's concern that greater use be made of mixed funding to accelerate
settlements. EPA plans increased use of mixed funding in appropriate cases.
b. De minimis parties. A commenter suggested that EPA should revise its
existing de minimis buyout provisions to allow earlier resolution of claims
against de minimis parties. EPA supports settlements with de minimis parties
and plans increased use of settlements with de minimis parties in appropriate
cases.
2. Notice. One commenter urged that EPA should specifically note in the
NCP that it is EPA's position that a private party need not provide notice to
the government before instituting a cost recovery action because a notice
requirement serves no significant policy goals and can only obstruct private
cleanups.
EPA agrees that a private party need not provide notice to the government
before instituting a cost recovery action against another private party, but
such party must provide concurrent notice to the government. Pursuant to
CERCLA section 113(1), whenever any action is brought under CERCLA in a federal
court by a plaintiff other than the United States, the plaintiff must provide a
copy of the complaint to the Attorney General of the United States and to the
Administrator of EPA.
3. Ripeness. According to one commenter, EPA should urge (in the NCP)
that plaintiffs should not be required to have incurred all of the cleanup
costs at a site before being entitled to bring a section 107 cost recovery
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action. The commenter acknowledged that while it is logical to require
completion of cleanup actions in order to protect public health, requiring
completion as a prior condition to the bringing of a cost recovery action could
have an adverse effect on parties' willingness to undertake costly cleanups of
hazardous waste releases. A party may be reluctant to assume all of the costs
without some judicial assurance on the issue of the ultimate liability for cost
recovery purposes. Few companies, the commenter added, have the resources
necessary to completely fund a large, unilateral cleanup, even if they expect
to be reimbursed.
In response, EPA agrees with the commenter that a cost recovery action
need not await the incurring of all response costs before it may be brought.
This interpretation is consistent with CERCLA section 113(g)(2), which allows
courts to enter "declaratory judgments" on liability that are binding on
subsequent cost recovery actions under CERCLA section 107. Further, as the
commenter noted, requiring a party to incur all costs before bringing a cost
recovery action may discourage and delay cleanups, contrary to the intent of
Congress that sites be cleaned up expeditiously.
4. Recoverable costs. One commenter stated that the NCP should expressly
provide that the only limitation on the nature of recoverable private response
costs deemed appropriate by EPA is that they be consistent with the NCP.
Because the plaintiff in a cost recovery action must bear the initial out-of-
pocket expenses itself, there is sufficient private incentive to conduct cost-
effective response actions.
EPA disagrees with the commenter that the only limitation on appropriate
recovery be that the costs have been incurred consistent with the NCP.
Pursuant to CERCLA section 107(a)(4)(B), a person may be liable for "any other
necessary costs of response incurred by any other person consistent with the
national contingency plan." Therefore, plaintiffs must prove that costs are
both "necessary" and "incurred consistent with the NCP."
5. Standard of liability. One commenter stated that the proposed NCP
fails to specify the standard of liability that ought to be applied by the
courts in private actions, although courts have agreed that strict liability is
appropriate for government cleanup actions under Superfund. The commenter
alleged that the Act does not suggest that differing standards of liability are
appropriate under the statute. The commenter argued that as long as strict
liability is applied in government-initiated cases, it should be applied as
well to private cost recovery claims.
EPA has long taken the position that the liability of potentially
responsible parties is strict, joint, and several, unless they can clearly
demonstrate that the harm at the site is divisible. This standard of liability
applies no matter whether the plaintiff is governmental or private.
6. Consistency with NCP - political subdivisions. One commenter asserted
that EPA's inclusion of political subdivisions of states as parties whose
actions are presumed to be consistent with the NCP is contrary to the statute.
The plain words of the statute indicate that only federal and state
governments and Indian tribes fall within section 107(a)(4)(A). EPA appears to
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be assuming that local governments are subsumed within the definition of
states, and thus are subject to the same cost recovery presumption as states.
However, there are numerous provisions in CERCLA in which states and local
governments are both separately referred to -- an illogical result if Congress
did not truly intend for the latter to be considered legally different entities
from the former. Furthermore, these provisions always referred to these two
entities as states or local governments (or political subdivisions of states),
thereby reinforcing the presumption that Congress intentionally
start 55 FR 8799
differentiated between these two levels of government. Therefore, the
commenter urged, EPA should revise proposed ' 300.700(c) (1) by deleting the
text "including political subdivisions thereof ...." Such a change will retain
the presumption of consistency with the NCP only for those parties for whom
Congress intended such a preference.
EPA is revising the rule to be consistent with the language in section
107(a)(4)(A). The issue of whether political subdivisions can be treated like
states for purposes of cost recovery actions under section 107 is a matter to
be left to the courts.
7. Not inconsistent with NCP - governmental response actions. One
commenter asserted that EPA should not delete language that defines what NCP
provisions constitute actions to be not inconsistent with the NCP (see 53 FR
51462). The commenter suggested EPA should be clear in delineating the "not
inconsistent with" standard for all to see and use on a case-by-case basis
consistent with the statute.
EPA believes that it is not necessary to define what actions are "not
inconsistent with the NCP," and would leave those determinations to case-by-
case decision-making. The "not inconsistent" standard applies only to removal
or remedial actions conducted by an agency of the federal government, a state,
or an Indian tribe. Governmental bodies, particularly states, may have
programs similar to the NCP, that achieve the same objectives, but are not
congruent with the NCP in every respect. EPA believes that these governmental
bodies, consistent with the statute, should have flexibility to implement
response actions and bring cost recovery actions for those response actions as
long as the response actions are not inconsistent with the NCP, even if
achieved by different methods.
8. Treble damages. A commenter noted that CERCLA section 107(c) (3)
currently contains a provision for the collection of punitive damages "in an
amount of at least equal to, and not more than, three times" against
individuals who "without sufficient cause" fail to carry out a CERCLA section
104 or 106 administrative order. The commenter asserted that this provision
has not been used by EPA to recover damages from recalcitrant parties who do
not respond and participate in the cleanup of wastes that they are responsible
for at a given site. The commenter urged that recalcitrant parties should not
be led to believe that the government will not seek to extract punitive
damages, or they may choose to wait for government action at the expense of
delaying a voluntary cleanup.
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The commenter said that treble punitive damages are especially important
where the identifiable incremental cost of a response action (assumed by a
proactive company) related to recalcitrant waste volumes may be minimal. These
damages, when compared to a minimal total response cost represent an incentive
for early cooperation by the potential recalcitrant, and an incentive for EPA
to acquire funds to apply to a site remediation project. The need for mixed
funding Superfund financing requirements should also be reduced by recalcitrant
participation.
The commenter added that EPA's use of treble damages in cost recovery
actions will provide further incentive for prompt response actions before and
after waste sites or other areas are listed on the NPL. Such action would help
to limit the number of sites listed on the NPL and encourage independent action
by both government (e.g., municipal) and private parties.
It has been and continues to be EPA's policy that seeking treble damages
in cost recovery actions against recalcitrant parties who fail to comply with
administrative orders under sections 104 or 106 is an important tool and EPA
considers its use in appropriate cases.
Final rule: Proposed ' 300.700(c) (1) is revised to delete the reference to
political subdivisions.
Name: Section 300.700(e). Recovery under CERCLA section 106(b).
Proposed rule: The proposed section provided that any person may undertake a
response action to reduce or eliminate a release of a hazardous substance,
pollutant or contaminant. It also summarized the various authorities under
CERCLA that are available to recover the costs of response actions. Those
mechanisms include section 106(b) - wherein any person who has complied with a
section 106(a) order may petition the Fund for the reimbursement of reasonable
costs, plus interest.
Response to comments: 1. Petitions for reimbursement. One commenter noted an
error in the rule language in ' 300.700(e). The preamble and the rule language
have conflicting dates. The preamble uses an October 17, 1986 date, while the
rule language uses an October 10, 1986 date. Final ' 300.700(e) has been
revised to read "... after October 16, 1986 ...."
2. Effective date and waiver in section 106(b)(2). One commenter noted
that proposed ' 300.700(e) would provide that persons who have complied with an
order "issued after October 17, 1986" may petition the Fund for reimbursement
"unless the person has waived that right." The commenter stated that neither
of the quoted limitations is in CERCLA, and both are inappropriate attempts to
narrow the rights of PRPs to claim against the Fund. The commenter alleged
that the reimbursement provision was effective as of October 17, 1986, and
applied to "any order" issued under section 106(a). The commenter believed
that as long as the recipient of the order petitions EPA for reimbursement
within 60 days after completion of the required action, reimbursement is
potentially available under the law. The commenter requested that EPA delete
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the two phrases quoted above.
EPA interpretation of section 106(b)(2) is that it applies only to orders
issued after the date of enactment of SARA, i.e., on or after October 17, 1986.
That interpretation has been upheld in court as a reasonable interpretation.
(See Wagner Seed Co. v. Bush, 709 F.Supp. 249 (D.D.C. 1989).)
Pursuant to section 106(a), the President may issue orders unilaterally
or on consent. Administrative orders issued on consent generally contain a
waiver of a respondent's rights pursuant to section 106(b) (2), therefore the
reference to "unless the person has waived that right."
Final rule: Proposed ' 300.700(e) is revised to include the date of October
16, 1986.
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SUBPART I — ADMINISTRATIVE RECORD FOR SELECTION OF RESPONSE
ACTION
Subpart I of the NCP is entirely new. It implements CERCLA requirements
concerning the establishment of an administrative record for selection of a
response action. Section 113(k)(1) of CERCLA requires the establishment of
"an administrative record upon which the President shall base the selection of
a response action." Thus, today's rule requires the establishment of an
administrative record that contains documents that form the basis for the
selection of a CERCLA response action. In addition, section 113(k)(2)
requires the promulgation of regulations establishing procedures for the
participation of interested persons in the development of the administrative
record.
These regulations regarding the administrative record include procedures
for public participation. Because one purpose of the administrative record is
to facilitate public involvement, procedures for
start 55 FR 8800
establishing and maintaining the record are closely related to the procedures
governing public participation.
General community relations provisions found in other parts of the proposed
NCP are addressed elsewhere in this preamble.
The following sections discuss the major comments received on the
proposed Subpart I and EPA's responses.
Name: General comments.
Proposed rule: Subpart I details how the administrative record is assembled,
maintained and made available to the public.
Response to comments: Comments on the administrative record regulations
included the suggestion that the preamble provide a general statement
differentiating between the administrative record and the information
repository.
EPA agrees that while Subpart I includes ample information on the
requirements of the administrative record, a brief clarification would help to
differentiate the record from the information repository.
The information repository includes a diverse group of documents that
relate to a Superfund site and to the Superfund program in general, including
documents on site activities, information about the site location, and
background program and policy guides. EPA requires an information repository
at all remedial action sites and any site where a removal action is likely to
extend beyond 120 days. The purpose of the information repository is to allow
open and convenient public access to documents explaining the actions taking
place at a site.
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The administrative record discussed in this subpart, by contrast, is the
body of documents that forms the basis of the agency's selection of a
particular response at a site, i.e., documents relevant to a response
selection that the lead agency relies on, as well as relevant comments and
information that the lead agency considers but may reject in the ultimate
response selection decision. Thus, the record will include documents the lead
and support agency generate, PRP and public comments, and technical and site-
specific information. These documents occasionally overlap with those
included in the information repository. The administrative record includes
such information as site-specific data and comments, guidance documents and
technical references used in the selection of the response action. The
information repository may include guides to the Superfund process, background
information, fact sheets, press releases, maps, and other information to aid
public understanding of a site response, regardless of whether the information
has bearing on the eventual response selection at that site.
One commenter felt that there was no mechanism for PRPs to participate
in the development of the administrative record. In response, PRPs are given
a chance to participate in the development of the administrative record
throughout its compilation. EPA will make available information considered in
selecting the response action to PRPs and others through the administrative
record file. Interested persons may peruse the record file, submit information
to be included in the administrative record file, or may comment on the its
contents during the ensuing public comment period.
Name: Section 300.800(a). Establishment of an administrative record. Section
300.810(a). Contents of the administrative record.
Proposed rule: Section 113(k)(1) of CERCLA states that the "President shall
establish an administrative record upon which the President shall base the
selection of a response action." EPA used similar language in ' 300.800(a)
of the proposed rule: "The lead agency shall establish an administrative
record that contains the documents that form the basis for the selection of a
response action." (Emphasis added.) Section 300.810(a) states that the
"administrative record file for selection of a response action typically, but
not in all cases, will contain the following types of documents...," followed
by an enumeration of those documents.
Response to comments: EPA's choice of the phrase "form the basis" in
300.800(a) drew many comments. The comments expressed concern that the lead
agency would have the discretion to include in the administrative record only
those documents that support EPA's selected remedy.
These comments appear to be based on a misunderstanding of what the
phrase "forms the basis of" means as it was used in the proposed rule. The
statute defines the administrative record as the "record upon which the
President shall base the selection of a response action." EPA's intent in
defining the record as the file that "contains the documents that form the
basis for the selection of a response action" was simply to reflect the
statutory language. For example, an administrative record will contain the
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public comments submitted on the proposed action, even if the lead agency
rejects the comments, because the lead agency is required to consider these
comments and respond to significant comments in making a final decision.
Thus, these comments also "form the basis of" the final response selection
decision. EPA intends that the regulatory language defining the
administrative record file embody general principles of administrative law
concerning what documents are included in an "administrative record" for an
agency decision. As a result, contrary to the suggestion of the commenters,
the proposed definition of the administrative record does not mean that the
record will contain only those documents supporting the selected response
action.
A commenter asked that the phrase "but not in all cases" be deleted from
300.810(a), or specify the cases where documents are excluded from the
administrative record. EPA believes it is better not to attempt to list
excluded documents in the NCP since EPA cannot possibly anticipate all the
types of documents that will be generated for a site or for future sites, and
which of these documents should be excluded except as generally described in
300.810(b). It should be noted, for example, that although a health
assessment done by ATSDR would normally be included in the administrative
record, it would not be if the assessment was generated by ATSDR after the
response is selected.
Others commented that certain documents should always be included in the
administrative record. EPA believes that only a small group of documents will
always be generated for every type of CERCLA site, since each site is unique.
Other documents may or may not be generated or relevant to the selection of a
particular response action at a site. EPA understands that a definitive list
of required documents would assist parties in trying to assess the
completeness of the administrative record, but such a list would not be
practical. Different sites require different documents.
A related group of comments asked that the administrative record always
include certain documents, including, specifically, "verified sampling data,"
draft and "predecisional" documents, and technical studies. One comment
stated that "invalidated" sampling data and drafts must be part of the
administrative record in some situations. Verified sampling data, i.e., data
that have gone through the quality assurance and quality control process, will
be included in the record when they have been used in the selection of a
response action. "Invalidated" data, i.e., data which have been found to be
incorrectly gathered, is not used by EPA in selecting the response action and
should therefore not be included in the
start 55 FR 8801
record. These should be distinguished from unvalidated data -- data that has
not been through the quality control process -- which may in limited
circumstances be considered by the agency in selecting the response action.
It is EPA's policy to avoid using unvalidated data whenever possible.
Nonetheless, there are times when the need for action and the lack of
validated data requires the consideration of such data in selecting an
emergency removal action. If such data are used, they will be included in the
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record.
In general, only final documents are included in the administrative
record files. Draft documents are not part of the record for a decision
because they generally are revised or superseded by subsequent drafts and thus
are not the actual documents upon which the decision-maker relies. However,
drafts (or portions of them) generally will be included in the administrative
record for response selection if there is no final document generated at the
time the response is selected and the draft is the document relied on. In
addition, a draft which has been released to the public for the purpose of
receiving comments is also part of the record, along with any comments
received.
Similarly, predecisional and deliberative documents, such as staff notes
or staff policy recommendations or options papers, do not generally belong in
the administrative record because they merely reflect internal deliberations
rather than final decisions or factual information upon which the response
selection is based. However, pertinent factual information or documents
stating final decisions on response selection issues for a site generally
would be included in the record.
Technical studies are also part of the record, again, if considered by
the lead agency in selecting the response action. The commenter seems to have
misinterpreted EPA's intent by assuming that only factual portions of a
technical study are part of the record. The entire study, or relevant part of
the study, should be part of the record.
Another comment stated that the administrative record should include any
studies on cost, cost-effectiveness, permanence, and treatment that underlie
the record of decision. These studies are already part of the remedial
investigation and feasibility study, which is always included in the record.
Another party stated that sampling protocols should be in the administrative
record. Sampling protocols are part of the RI/FS work plan, which is also
part of the administrative record. And because sampling protocols, like chain
of custody documents, are generally grouped together, EPA has provided in this
rulemaking that such grouped or serial documents may be listed as a group in
the index to the administrative record file.
A related comment requested that all documents generated by contractors
should be included in the record. In response, any document that forms the
basis of a response selection decision will be included in the administrative
record. It is immaterial who develops the document -- it can be a contractor,
the public (including a PRP), a state or EPA.
One commenter asked that ARAR disputes involving a disagreement over
whether a requirement is substantive or administrative be documented in the
record. Other comments stated that EPA must ensure that complete ARAR
documentation and documentation of all remedial options, not just the selected
remedy, be placed in the record. Where ARAR issues are relevant to response
selection, lead and support agency-generated documents and public information
submitted to the lead agency on this issue would be part of the record. The
record will include documentation of each alternative remedy and ARAR studied
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during the RI/FS process, and the criteria used to select the preferred remedy
during the remedy selection process.
EPA also received several comments stating that every document
contributing to decision-making should be part of the administrative record.
EPA cannot concur in this formulation of the administrative record since it is
unclear what "contributing to" means and that phrase may be overly broad. For
instance, the term "contributing to" could be interpreted to include all draft
documents leading up to a final product. These draft documents do not
generally form the basis of the response selection. However, because the
administrative record includes documents which form the basis for the decision
to select the response action, EPA believes that most "contributing" documents
will be included.
One comment stated that the hazard ranking system (HRS) information
should be included in the administrative record for selection of the response
action. Specifically, they suggested that internal memoranda, daily notes,
and the original HRS score should be made available. The National Priorities
List (NPL) docket is a public docket, and already contains the relevant
ranking information. The information generally relevant to the listing of a
site on the NPL is preliminary and not necessarily relevant to the selection
of the response action. If, however, there is information in the NPL docket
that is relied on in selecting the response action, it will be included in the
administrative record.
Another commenter stated that all materials developed and received during
the remedy selection process should be made a part of the record, and stated
that the NCP currently omits inclusion of transcripts. As noted above, certain
documents simply will not be relevant to the selection of response actions.
EPA will, as required by the statute, include in the record all those
materials, including transcripts, that form the basis for the selection of a
response action, whether or not the materials support the decision.
Several commenters asked that the lead agency be required to mail them
individual copies of documents kept in the administrative record. These
requests included copies of sampling data, a copy of any preliminary
assessment petitions, potential remedies, the risk assessment, a list of
ARARs, and notification of all future work to be done. Commenters also asked
to be notified by mail when a lead agency begins sampling at a site and when a
contractor is chosen for a response action. In addition, many asked for the
opportunity to comment on the documents mentioned above. A related comment
suggested that EPA maintain a mailing list for each site and mail copies of
key documents in the record to every party on the list.
EPA believes that maintaining an administrative record file in two
places, in addition to a more general information repository, with provisions
for copying facilities reflects EPA's strong commitment to keeping the
affected public, including PRPs, informed and providing the opportunity for
public involvement in response decision-making. Requiring EPA to mail
individual copies of documents available in the record file is beyond any
statutory requirements, unnecessary due to the ready availability of the
documents in the file, and a severe burden on Agency staff and resources.
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Most of the documents requested above will generally be available in the
administrative record for public review and copying. Additionally, the lead
agency should maintain a mailing list of interested persons to whom key site
information and notice of site activities can be mailed as part of their
community relations plan for a site.
One commenter asked that all PRP comments and comments by other
interested parties be included in the record, regardless of their
start 55 FR 8802
"significance." EPA will include all comments received during the comment
period in the administrative record, regardless of their significance. When
the lead agency considers comments submitted after the decision document has
been signed, the "significance" of a comment has a bearing on whether it will
be included in the administrative record, as specified in
300.825(c) . In addition, while EPA is under no legal obligation to place in
the record or consider comments submitted prior to the comment period, EPA
will generally, as a matter of policy, consider significant comments submitted
prior to the comment period, place them into the record, and respond to them
at an appropriate time. However, persons who wish to ensure that the comments
they submitted prior to the comment period are included in the record must
resubmit such comments during the comment period.
Final rule: Section 300.800(a) is promulgated as proposed.
Name: Section 300.800(b). Administrative record for federal facilities.
Proposed rule: Section 300.800(b) states that the lead agency for a federal
facility, whether EPA, the U.S. Coast Guard, or any other federal agency,
shall compile and maintain an administrative record for that facility. When
federal agencies other than EPA are the lead at a federal facility site, they
must furnish EPA with copies of the record index, in addition to other
specified documents included in the record. The preamble to the proposed NCP
discussion of ' 300.800(b)(53 FR 51464) states that EPA will establish
procedures for interested parties to participate in the administrative record
development, and that EPA may furnish documents which the federal agency is
required to place in the record.
Response to comments: One comment stated that EPA should be the custodian for
administrative records for federal facilities, especially where the federal
facility is a PRP, to avoid any conflict of interest in questions of liability
or litigation. Another comment stated that the requirements in ' 300.800(b)
of the proposed rule would be burdensome to federal agencies in compiling and
maintaining the record.
Executive Order 12580 grants federal agencies the authority to "establish
the administrative record for selection of response actions for federal
facilities under their jurisdiction, custody or control." To avoid the
potential for conflicts of interest by federal agencies who are PRPs and in
charge of compiling and maintaining the record, EPA retains control over the
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development of the record by specifying what goes into the record, by
supplementing the record and by requiring an accounting of what is in the
record through a report of the indexed contents. EPA believes that these
requirements represent sufficient Agency oversight to avoid potential
conflicts of interest at federal facilities while ensuring that federal lead
agencies remain responsible for compiling and maintaining their own
administrative record.
EPA is making a minor editorial change in 300.800(b)(1) to reflect that
the federal agency compiles and maintains an administrative record for a
facility, and not at a facility, since ' 300.800(a) already provides that the
record will be located at or near that facility.
Final rule: EPA is promulgating the rule as proposed, except for the
following minor editorial change in the first sentence of 300.800(b)(1): "If a
federal agency other than EPA is the lead agency for a federal facility, the
federal agency shall compile and maintain the administrative record for the
selection of the response action for that facility in accordance with this
subpart."
Name: Section 300.800(c). Administrative record for state-lead sites.
Proposed rule: Section 113(k) of CERCLA states that the President "shall
establish an administrative record upon which the President shall base the
selection of a response action." Section 300.800(c), entitled "Administrative
record for state-lead sites," requires that states compile administrative
records for state-lead sites in accordance with the NCP.
Response to comments: Several commenters believe that the new administrative
record procedures place an onerous burden on the state, and request that state
requirements such as Open Records Acts should be allowed as a substitute for
compliance with Subpart I. Another commenter recommended that states be
allowed to determine whether a complete administrative record is needed at or
near the site when a site is state-lead. Where a response is taken under
CERCLA at a state-lead site, EPA is ultimately responsible for the selection
of a response action. Therefore, under Section 113(k), EPA must establish an
administrative record for the CERCLA response action at the site, and must, at
a minimum, comply with Subpart I. There may be many different ways of
compiling administrative records and involving the public in the development
of the record. Subpart I states the minimum requirements for section 113(k).
Lead agencies, including states, may provide additional public involvement
opportunities at a site. In response to whether or not states should maintain
a complete administrative record at or near the site, EPA believes that states
must have such a record in order to meet CERCLA section 113(k) requirements.
EPA has included a minor editorial change in 300.800(c) to reflect that
a state compiles and maintains an administrative record for rather than at a
given site.
Final rule: EPA is promulgating ' 300.800(c) as proposed, except for a minor
editorial change in the first sentence as follows: "If a state is the lead
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agency for a site, the state shall compile and maintain the administrative
record for the selection of the response action for that site in accordance
with this subpart."
Name: Sections 300.800(d) and 300.800(e). Applicability.
Proposed rule: Section 300.800(d) states that the provisions of Subpart I
apply to all remedial actions where the remedial investigation began after the
promulgation of these rules, and for all removals where the action memorandum
is signed after the promulgation of these rules. Section 300.800(d) also
proposes that "[T]his subpart applies to all response actions taken under
section 104 of CERCLA or sought, secured, or ordered administratively or
judicially under section 106 of CERCLA." Section 300.800(e) states that the
lead agency will apply Subpart I to all response actions not included in
300.800(d) "to the extent practicable."
Response to comments: One commenter argued that the applicable provisions of
Subpart I should be amended to require agencies to comply with the subpart for
all sites where the remedy selection decision was made more than 90 days after
proposal of the revised NCP for comment. Another comment stated that
300.800(e) be revised to state that lead agencies must comply with Subpart I
in any future actions they take, and that all lead agency actions must comply
with Subpart I "to the maximum extent practicable."
In response, EPA will adhere as closely as possible to Subpart I for
sites where the remedial investigation began before these regulations are
promulgated. EPA will not, however, require that these sites comply with
requirements which, because of the
start 55 FR 8803
timing of the response action relative to the promulgation of these rules,
cannot be adhered to. For example, under the final rule the administrative
record file must be available at the beginning of the remedial investigation
phase. If these regulations are promulgated when a site is in the middle of
the remedial investigation process, and the administrative record is not yet
available, the lead agency cannot at this point comply with these regulations.
Additionally, EPA believes that adding language to proposed NCP ' 300.800(e)
to state that lead agencies will comply with provisions of Subpart I in any
future action after promulgation of the new rule is unnecessary and redundant;
compliance will be legally required, and applicability to all future response
actions is implicit in the rule. Likewise, insertion of the word "maximum"
before the phrase "extent practicable" is unnecessary since it would give
additional emphasis but would not substantively change the requirement or the
meaning of the rule.
One comment agreed with EPA's interpretation that Subpart I applies to
all response actions "sought, secured or ordered administratively or
judicially," but others disagreed. Several stated that the term "judicially"
should be deleted from
300.800(d) because they argue that response actions ordered judicially would
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receive de novo adjudication, instead of administrative record review. CERCLA
section 113(j)(1) states: "In any judicial action under this Act, judicial
review of any issues concerning the adequacy of any response action taken or
ordered by the President shall be limited to the administrative record."
Commenters contend that this section does not apply to injunctive actions
under CERCLA section 106 because these are not actions "taken or ordered by
the President." To the contrary, the selection of a response action is a
"response action taken... by the President." Accordingly, section 113(j)(1)
requires that judicial review of the response action selected by the agency is
"limited to the administrative record." Further, section 113(j)(2) stipulates
that, "in any judicial action under this chapter" -- whether for injunctive
relief, enforcement of an administrative order or recovery of response costs
or damages -- a party objecting to "the President's decision in selecting the
response action" must demonstrate, "on the administrative record, that the
decision was arbitrary or capricious or otherwise not in accordance with law."
EPA received several comments objecting to EPA's determination that
judicial review of an endangerment assessment be limited to the administrative
record. They stated that as a matter of administrative and constitutional
law, a finding of imminent and substantial endangerment is not an issue
concerning "the adequacy of the response action," as stated in CERCLA section
113(j), and therefore must receive de novo review by a court. A second
comment requested that EPA state in the regulation that review of EPA's
expenditures in the implementation of a remedy is de novo.
An assessment of endangerment at a site is a factor highly relevant to
the selection of a response action, and is in fact part of the remedial
investigation (RI) process central to the decision to select a response
action. Therefore, the determination of endangerment (which will generally be
included in the decision document) will be included in the administrative
record for selection of a response action and should be reviewed as part of
that record. (EPA notes that the term "endangerment assessment" document has
been superseded by the term "risk assessment" document, and while assessments
of endangerment at a site are still conducted during the RI, it is the "risk
assessment" document that becomes part of the record.) In response to the
comment that Agency expenditures on a response action should receive de novo
review, EPA notes that this issue was not raised in the proposed NCP, and is
therefore not addressed in the final rule.
Final rule:
EPA is promulgating the rule as proposed.
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Name: Section 300.805. Location of the administrative record file.
Proposed rule: Section 113(k)(1) of CERCLA states that "the administrative
record shall be available to the public at or near the facility at issue. The
President also may place duplicates of the administrative record at any other
location." Section 300.805 of the proposed NCP provides five exemptions for
information which need not be placed at or near the facility at issue: Sampling
and testing data, guidance documents, publicly available technical literature,
documents in the confidential portion of the file, and emergency removal
actions lasting less than 30 days.
Response to comments: One commenter supported limiting the amount of
information which must be located at or near the site, but many commenters
stated that every document contributing to decision-making, including
confidential documents which are part of the record, should be located at or
near the site and agency convenience is not a sufficient reason to exclude
documents from the site. They asserted that such exclusions undermine active
public involvement at the site and are contrary to statutory intent. Another
comment stated that requiring the administrative record to be kept in two
places, at a central location and at or near the site, runs counter to the
statutory requirement of keeping a record only "at or near the facility at
issue." One commenter asked that EPA acknowledge that Indian tribal
headquarters may be a logical place to keep the administrative record when a
Superfund site is located on or near an Indian reservation. A final comment
requested that EPA endorse through regulatory language that administrative
records can be kept on microfiche or other record management technologies, and
have the equivalent legal validity to paper records.
Requiring sampling data and guidance documents to be placed at the site is
both unnecessary and, in many cases, very costly. Administrative records are
often kept at public libraries where space is limited and cannot accommodate
voluminous sampling data for large, complex sites. Summaries of the data are
included in the RI/FS, which is located at or near the site. In addition,
requiring publicly available technical literature at the site will require
copying copyrighted material, an additional expenditure of limited Superfund
dollars. Moreover, Agency experience is that, as yet,relatively few people
view the administrative record file at or near the site or request review of
the sampling data or general guidance documents listed in the index to the site
file.
However, EPA has revised the rule to specify that, if an individual wishes
to review a document listed in the index but not available in the file located
at or near the site, such document, if not confidential, will be provided for
inclusion in the file upon request. The individual will not need to submit a
Freedom of Information Act Request in order to have the information made
available for review in the file near the site. EPA believes that provision of
such documents in the file near the site upon request meets the requirement of
CERCLA section 113(k) that the record be "available" at or near the site. In
addition, this rule does not bar lead agencies from deciding to place this
information in the site file without waiting for a request. Lead agencies are
encouraged to place as much of this information at or near the site as
practical, and to automatically place information at sites where there is a
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start 55 FR 8804
high probability that the information will be in demand or the information is
central to the response selection decision.
The confidential portion of the file need not be located at or near the
site, and will not be available upon request either at the site or at the
central location, since the information is not available for public review.
EPA believes that requiring that the record be located in two places is
necessary to ensure both adequate public access to the record files and better
lead-agency control over the record documents. The statutory requirement in
CERCLA section 113(k)(1) states that the President may also place duplicates
of the administrative record at any other location. This section clearly
provides authority to maintain a second administrative record at a central
location. Section 300.805 of the proposed NCP (53 FR 51515) reflects EPA's
decision to make this statutory option a regulatory requirement. A centrally
located record may offer easier access to interested parties located far from
the response site.
EPA agrees with the commenter that housing the centrally located copy of
the record at Indian tribal headquarters may be appropriate when a Superfund
site is located at or near an Indian reservation. In the 1986 amendments to
CERCLA, Indian tribes are accorded status equivalent to states, and can be
designated lead agencies for response actions, in which case they would also be
required to compile and maintain the administrative record at or near the site.
Finally, as EPA stated in the preamble to the proposed NCP, maintaining
the administrative record on microfiche is already recognized as a legally
valid and effective practice: "EPA may make the administrative record available
to the public in microform. EPA may microform-copy documents that form the
basis for the selection of a CERCLA response action in the regular course of
business" (53 FR 51465). EPA agrees that this should be specified in the rule
and has added ' 300.805(c) accordingly, providing that the lead agency may make
the record available in microform.
Final rule: Section 300.805 is modified as follows:
1. Section 300.805(b) is added to the rule as follows: "Where documents
are placed in the central location but not in the file located at or near the
site, such documents shall be added to the file located at or near the site
upon request, except for documents included in paragraph (a)(4) of this
section.
2. Section 300.805(c) is added to the rule as follows: "The lead agency
may make the administrative record file available to the public in microform."
3. The section has been renumbered accordingly.
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Name: Sections 300.810(a)-(d) . Documents not included in the administrative
record file.
Proposed rule: Section 300.810(b) discusses which documents may be excluded
from the administrative record. Section (c) discusses privileged information
that is not included in the administrative record. Section 300.810(d) discusses
confidential information that is placed in the confidential portion of the
administrative record.
Response to comments: One commenter argued that ' 300.810 should specifically
include an exemption for classified documents related to national security.
While the NCP currently does not address the potential conflict between
national security concerns and the requirement to establish a publicly
accessible administrative record, it is not clear that such an exemption could
be adequately specified by rule or that an exemption would appropriately
resolve this conflict. Section 121 (j) provides a national security waiver by
Presidential order of any requirements under CERCLA, which can be invoked in
certain circumstances. Under this provision, protection of national security
interests requires case-by-case review under section 121 (j) and not a blanket
exemption in the NCP. Nothing in the NCP limits the availability of this
waiver.
Another comment received by EPA stated that the treatment of privileged
and confidential documents in the records is unfair, because it denies access
to documents that may be critical to the selection of a remedy. EPA has
provided for a confidential portion of the administrative record where
documents containing, for example, trade secrets of companies that have
developed patented cleanup technologies being considered as a response
selection alternative can be kept confidential. To maintain a fair balance
between the need for confidentiality and the public's right of review of the
record, the lead agency must summarize or redact a document containing
confidential information to make available to the greatest extent possible
critical, factual information relevant to the selection of a response action in
the nonconfidential portion of the record.
A final comment proposed that an index to the privileged documents should
be included in the nonconfidential portion of the administrative record. EPA
agrees, believing that an index will let interested parties know in general
terms what documents are included in the record without compromising the
confidential nature of the information contained in those documents.
Finally, EPA is adding a sentence to ' 300.810(a) (6) to clarify that the
index can include a reference to a group of documents, if documents are
customarily grouped. This will simplify EPA's task without compromising the
integrity of the record.
Final rule: 1. EPA is promulgating '' 300.810(b), (c) and (d) as proposed with
a minor editorial change to clarify the first sentence of ' 300.810(d).
2. The following language is added to ' 300.810(a) (6) to provide for
listing grouped documents in the administrative record file index: "If
documents are customarily grouped together, as with sampling data chain of
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custody documents, they may be listed as a group in the index to the
administrative record file."
Name: Section 300.815. Administrative record file for a remedial action.
Proposed rule: The term "administrative record file" is used throughout the
proposed NCP. Section 300.815(a) proposes that the administrative record file
be made available for public inspection at the beginning of the remedial
investigation phase.
Response to comments: EPA received several comments objecting to the concept
of an administrative record file. They objected because there is no statutory
authority for establishing a file, and because they were concerned that the
lead agency could edit the file, specifically by deleting public and PRP
comments and information that do not support the response action ultimately
chosen by EPA, and that these comments and information would not remain a part
of the final administrative record.
The statute requires the President to establish an administrative record.
Under Subpart I of the NCP, the administrative record file is the mechanism
for compiling, and will contain, the administrative record required by section
113(k). One reason EPA adopted the concept of an administrative record file is
that EPA felt that it may be confusing or misleading to refer to an ongoing
compilation of documents as an "administrative record" until the compilation is
complete. Until the response action has been selected, there
start 55 FR 8805
is no complete administrative record for that decision. Thus, to avoid
creating the impression that the record is complete at any time prior to the
final selection decision, the set of documents is referred to as the
administrative record file rather than the administrative record.
However, this does not mean, as the comments appear to suggest, that the
lead agency may "edit" the administrative record file in a manner that removes
comments and technical data simply because they are not supportive of the final
selection decision. Any comments and technical information placed in the
record file for a proposed response action and relevant to the selection of
that response action, whether in support of, or in opposition to, the selected
response action, become part of the administrative record for the final
response selection decision. Such materials will remain in the administrative
record file, and will become part of the final administrative record. However,
EPA believes that as a matter of law documents that are erroneously placed in
the administrative record file (e.g., documents that have no relevance to the
response selection or that pertain to an entirely different site) would not
necessarily become part of the final administrative record.
EPA received additional comments stating that the administrative record
file should be available before the beginning of the remedial investigation
phase. These comments suggested that the file be available: When a site is
entered into the CERCLIS data base; when the HRS score is calculated; when
proposed for inclusion on the NPL; after the preliminary assessment report; and
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after the remedial site investigation.
EPA believes that the point at which a site is entered into the CERCLIS
data base is too early to put any information which would be relevant to a
selection of a response action into a record file because at this point there
has been no site evaluation and therefore little factual information about the
site upon which to base a response decision. Interested parties can already
find any information on a site that would be included at the point of the HRS
scoring and placement on the NPL in the NPL docket, which is publicly
available. The preliminary assessment and remedial investigation stages of a
response are premature for making the administrative record available; at these
points there is little information relevant to response selection on which to
comment or to review. Once the RI/FS work plan is approved, and the RI/FS
study begins -- including such activities as project scoping, data collection,
risk assessment and analysis of alternatives -- there is a coherent body of
site-specific information with relevance to the response selection upon which
to comment. EPA believes that the beginning of the RI/FS phase is the point in
the process when it makes sense to start a publicly available record of
information relevant to the response selection.
One comment suggested that interested persons would have no chance to
comment on the formation of the RI/FS work plan. The comment suggested that
the record file should be available before the RI/FS work plan is approved,
e.g., with a draft work plan or statement of work. EPA disagrees. Approved
work plans are often amended. An interested person may comment on the scope or
formation of the work plan, and such comments can be taken into account by the
lead agency and incorporated into a final or amended work plan. Such comments
must be considered if submitted during the comment period on the proposed
action.
Final rule: EPA is promulgating ' 300.815(a) as proposed.
Name: Section 300.815. Administrative record file for a remedial action.
Section 300.820(a). Administrative record file for a removal action.
Proposed rule: Subpart I requires that the administrative record for a
remedial action be available for public review when the remedial investigation
begins. Thereafter, relevant documents are placed in the record as generated
or received. The proposed regulations also require that the lead agency
publish a newspaper notice announcing the availability of the record files, and
a second notice announcing that the proposed plan has been issued. A public
comment period of at least 30 days is required on the proposed plan. Section
300.820(a) outlines the steps for the availability of the record and public
comment for a non-time- critical removal action. EPA solicited comments on a
proposal currently under consideration to require quarterly or semi-annual
notification of record availability and the initiation of public comment in the
FEDERAL REGISTER.
Response to comments: Some commenters suggested that the use of the FEDERAL
REGISTER to announce the availability of the administrative record is too
costly or of little or no benefit. Several commenters requested clarification
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on how and when the lead agency should respond to comments. Another stated
that lead agencies should be encouraged -- though not required -- to respond to
early comments before the formal comment period begins.
EPA chose not to require a notice of availability of the administrative
record in the FEDERAL REGISTER in this rulemaking because it is still unclear
whether the benefits of this additional notice outweigh its costs. EPA may
decide in the future to require this additional notice if it determines that
such notice would improve notification.
EPA agrees with commenters that clarification is needed as to when the
lead agency should respond to comments. We also agree that the lead agency
should be encouraged to respond to comments submitted before the public comment
period. EPA generally will consider any timely comments containing significant
information, even if they are not received during the formal comment period,
and encourages other lead agencies to do so. EPA will strive to respond to
comments it receives as early as possible, and to encourage other lead agencies
to follow suit. However, any lead agency is required to consider and respond
to only those comments submitted during a formal comment period. Any other
comments are considered at the lead agency's discretion. EPA has revised the
language of these sections to reflect the policy on consideration of public
comments submitted prior to public comment periods.
One comment recommended that the regulations should provide how long the
administrative record must be available, and suggested EPA coordinate efforts
with the National Archives about retaining the record as a historical record.
Another felt that materials were not always placed into the record in a timely
manner, and that the record was not always available to the working public
during evenings and weekends or accompanied by a copying machine. Similarly,
one commenter felt that documents should be placed in the record when they are
generated or in a prescribed time-frame of two weeks. Another asked that free
copies of key documents be included in the record.
EPA believes that the length of time a record must be available at or near
the site will be dependent on site-specific considerations such as ongoing
activity, pending litigation and community interest. EPA also believes that
difficulties sometimes encountered by the working public require resolution on
a site-by-site basis and do not merit a change in the proposed NCP language.
Special provisions may have to be made by the records coordinator, with the aid
of other site team members, including
start 55 FR 8806
the community relations coordinator or regional site manager, to ensure that
the record location chosen is convenient to the public and that copying
facilities are made available. Using public libraries to house the record
should promote better availability of the record during non-working hours and
on weekends. In response to mandating deadlines for lead agencies to place
documents into the administrative record file, Agency guidance already directs
record compilers to place documents into the record file as soon as they are
received. Agency policy additionally prescribes a suggested timeframe for
placing documents in the record file. EPA believes that mandatory deadlines in
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the NCP would do little to increase the rate at which records are already
compiled. The decision to place free copies of key documents in the record at
or near the site will be a site-specific decision based on the level of
community interest in these documents. Those who wish to make copies of key
documents or any document contained in the administrative record file should
already have access to copying facilities.
EPA received a comment requesting that it publish a joint notice of
availability of the administrative record with a notice of availability of
Technical Assistance Grants. Another comment stated that the removal site
evaluation and engineering evaluation/cost analysis (EE/CA) must be included in
the record for a non-time-critical removal action.
Publishing notice of the availability of the record in tandem with
announcements of the availability of Technical Assistance Grants (TAGs) is a
good idea where TAGs are available for a removal action. The TAGs, however,
are generally designed to support citizen involvement in technical issues for
sites undergoing remedial actions. The one-year, $2 million limitations on
removals and the limited number of alternatives usually reviewed make further
expense on a technical advisor less beneficial than it might be for a long-term
remedial action. As for placing the removal site evaluation and EE/CA in the
administrative record, EPA agrees that generally such documents would be part
of the administrative record for the removal action.
Finally, EPA is making a minor change to the language of
300.820(a)(4). EPA is substituting the term "decision document" in place of
action memorandum to allow for situations where the agency's decision document
for a removal action is not named an action memorandum.
Final rule: 1. The second sentences of '' 300.815(b), 300.820(a) (2) and
300.820(b) (2) are revised to reflect the new language on responding to comments
as follows: "The lead agency is encouraged to consider and respond, as
appropriate, to significant comments that were submitted prior to the public
comment period."
2. In 300.820(a)(4), the term "decision document" is substituted for
"action memorandum."
3. The remainder of ' 300.820(a) is promulgated as proposed.
Name: Section 300.820(b). Administrative record file for a removal action --
time-critical and emergency.
Proposed rule: Section 300.820(b) outlines steps for public participation and
administrative record availability for time-critical and emergency removal
responses (53 FR 51516): "Documents included in the administrative record file
shall be made available for public inspection no later than 60 days after
initiation of on-site removal activity," at which point notification of the
availability of the record must be published. The lead agency then, as
appropriate, will provide a public comment period of not less than 30 days on
the selection of the response action.
Response to comments: Several comments suggested that public comment
requirements under ' 300.820(b) were unnecessary and burdensome, especially the
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requirement to publish a notice of the availability of the record. One comment
argued that requiring public notification of both record availability and of a
site's inclusion on the NPL was unnecessary and duplicative. Another comment
stated that the requirements for public notification and public comment are not
appropriate for all time-critical removal actions, and recommended that the
administrative record be available for review only for those time-critical
removal actions that do require public notice and comment. A related comment
stated that the requirement to publish a notice of availability of the
administrative record for all time-critical removal actions be eliminated in
favor of making the record available but not requiring an advertisement or
comment period, since some time-critical removal actions are completed before a
public comment period could be held. Others asked that the public comment
period become mandatory, or at least mandatory for removal activities not
already completed at the time the record is made available. Another comment
requested that the record become available sooner -- at least 30 days after
initiation of on-site removal activity -- because the current 60-day period
prevented the consideration of any pre-work comments. A second comment
supported the 60-day period. Finally, a commenter argued that it made little
sense to make the record available after 60 days for an emergency response
because the on-scene coordinator (OSC) report containing most of the response
information isn't required to be completed until one year following the
response action.
In general, the public participation requirements under
300.820(b) are designed to preserve both the flexibility and discretion
required by the lead agency in time-critical removal action situations as well
as EPA's commitment to encouraging public participation and to keeping an
affected community well-informed. EPA believes the notification and comment
periods required in ' 300.820(b) provide for both Agency flexibility and
meaningful public involvement. The regulatory language stating that "The lead
agency shall, as appropriate, provide a public comment period of not less than
30 days" provides the lead agency needed flexibility when the emergency nature
of circumstances makes holding a comment period infeasible.
While EPA believes that it is necessary to announce the availability of
the administrative record for time-critical and emergency removal actions as
well as non-time-critical actions, EPA believes that requiring establishment of
the administrative record and publishing a notice of its availability 30 days
after initiating a removal action in all cases, instead of "no later than 60
days after initiating a removal action," as proposed, would be somewhat
premature. It has been EPA's experience that it often takes 60 days to
stabilize a site (i.e., those activities that help to reduce, retard or prevent
the spread of a hazardous substance release and help to eliminate an immediate
threat). EPA believes that the overriding task of emergency response teams
during this critical period must be the undertaking of necessary stabilization,
rather than administrative duties. Compiling and advertising the record before
a site has become stabilized would divert emergency response teams from
devoting their full attention to a response. EPA believes that such
administrative procedures are better left for after site stabilization.
Public notice requirements for announcing the availability of the
administrative record and for a site's inclusion on the NPL are not
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duplicative,
start 55 FR 8807
but notify the public of two very different decisions. Removal actions do not
always take place at sites on the NPL, therefore, the notice requirements are
obviously not duplicative for these removal actions. For remedial sites that
are on the NPL, the administrative record need not be established for some time
after listing on the NPL, so publishing a notice of the availability of the
record would be essential to make the affected public cognizant of site
progress and their opportunity for review of documents included in the record.
Lastly, the procedures specified in ' 300.820(b) are applicable to an
emergency removal that starts and finishes within 60 days. However, as
provided in ' 300.820(b) (2), a comment period is held only where the lead
agency deems it appropriate. But because the administrative record is an
avenue for public information as well as for public comment, EPA also believes
that even if the action is completed before the record file is made available,
it is still appropriate to make the record available to the public. There is
also no inherent contradiction in the OSC report being available one year after
completion of the response action while the administrative record becomes
available 60 days after initiation of on-site activities. Since the OSC report
is a summary of the site events and is not a document which is considered in
the selection of response action, it is not generally included in the
administrative record.
Final rule: EPA is promulgating ' 300.820(b) as proposed, except that:
1. The second sentence of ' 300.820(b) (2) is revised on responding to
public comments as described above.
2. Section 300.820(b) (3) is revised consistent with
300.820(a)(4); the term "action memorandum" is changed to "decision
document."
Name: Section 300.825. Record requirements after decision document is signed.
Proposed rule: Section 300.825 describes situations where documents may be
added to the administrative record after the decision document is signed.
Documents may be added to a record in the following circumstances: When the
document addresses a portion of the decision which the decision document does
not address or reserves for later; when the response action changes and an
explanation of significant differences or an amended decision document is
issued; when the agency holds additional public comment periods after the
decision is signed; and when the agency receives comments containing
"significant information not contained elsewhere in the record which could not
have been submitted during the public comment period which substantially
support the need to significantly alter the response action" (53 FR 51516). In
addition, Subpart E of the proposed NCP discusses ROD amendments and
Explanations of Significant Differences. Explanations of Significant
Differences may be used for significant changes which do not fundamentally
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change the remedy, and do not require public comment. ROD amendments must be
used for fundamental changes, and require a public comment period.
Response to comments: One commenter asked that Subpart I reflect the factors
consistently applied by courts when determining whether the record should be
supplemented, including such criteria as Agency reliance on factors not
included in the record, an incomplete record, and strong evidence that EPA
engaged in improper behavior or acted in bad faith. A related comment stated
that since general principles of administrative law apply to administrative
record restrictions and supplementing the record, language limiting
supplementing the record should be deleted from the NCP. EPA believes that
including specific tenets of administrative law governing supplementing of the
record in the NCP itself is unnecessary. These tenets apply to record review
of response actions whether or not they are included in the NCP. The
requirements of ' 300.825(c) do not supplant principles on supplementing
administrative records.
Another comment recommended that EPA permit the record to be supplemented
with any issue contested by a PRP, while granting an objective third party the
ability to accept or reject record supplements. EPA already requires that any
documents concerning remedy selection submitted by PRPs within the public
comment period be included in the record. All significant evidence submitted
after the decision document is complete is already included in the record, so
long as it meets the requirements of
300.825(c), it is not included elsewhere in the record, could not have been
submitted during the public comment period, and supports the need to
significantly alter the response action.
EPA believes these criteria are reasonable and do not require the use of a
third-party arbitrator.
One comment stated that all PRP submissions must be placed in the record
in order to protect a party's due-process right to be heard. EPA disagrees
that all PRP submissions to the lead agency must be placed in the record in
order to protect the party's due process rights. The process provided in the
rules --including the notice of availability of the proposed plan and the
administrative record for review, the availability of all documents underlying
the response selection decision for review throughout the decision-making
process, the opportunity to comment on the proposed plan and all documents in
the administrative record file, the requirement that the lead agency consider
and respond to all significant PRP comments raised during the comment period,
the notice of significant changes to the response selection, and the
opportunity to submit, and requirement that the lead agency consider, any new
significant information that may substantially support the need to
significantly alter the response selection even after the selection decision --
is sufficient to satisfy due process. Moreover, the opportunity provided for
PRP and public involvement in response selection exceeds the minimum public
participation requirements set forth by the statute. Placing a reasonable
limit on the length of time in which comments must be submitted, and providing
for case-by-case acceptance of late comments through ' 300.825(c), does not
infringe upon procedural rights of PRPs.
One commenter asked that the permissive "may" in
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300.825(a) be changed so there is no lead-agency discretion over whether to
add to the administrative record documents submitted after the remedy
selection, and stated that additional public comment periods as outlined in
300.825(b) should not be only at EPA's option. A related comment stated that
the multiple qualifiers in ' 300.825(c), including the phrases "substantially
support the need" and "significantly alter the response action" (53 FR 51516),
grant EPA overly broad discretionary powers over what documents may be added to
the record. The commenter suggests deleting the word "substantially," as well
as stating that all comments, even those disregarded by EPA, should be included
in the record for the purpose of judicial review. EPA disagrees that the word
"may" in either ' 300.825(a) or ' 300.825(b) is too permissive. Section
300.825(b) of the proposal was simply intended to clarify the lead agency's
implicit authority to hold additional public comment periods, in addition to
those required under Subpart E for ROD amendments, whenever the lead agency
decides it would be appropriate. Because these additional comment periods are
not
start 55 FR 8808
required by statute or regulation, the "permissive" language simply reflects
the lead agency's discretion with respect to these additional public
involvement opportunities. Similarly, lead-agency discretion to add to the
administrative record documents submitted after a decision document has been
signed provides the lead agency the option to go beyond the minimum
requirements for public participation outlined in the statute. In response to
requests to delete the qualifiers in ' 300.825(c), this language is
intentionally designed to define carefully the circumstances in which EPA must
consider comments submitted after the response action has been selected. This
standard recognizes CERCLA's mandate to proceed expeditiously to implement
selected response actions, but also recognizes that there will be certain
instances in which significant new information warrants reconsideration of the
selected response action. Section 300.825(c) is intended to provide a
reasonable limit on what comments EPA must review or consider after a decision
has been made.
Several commenters requested that PRPs not identified until after the
close of the public comment period should be allowed an opportunity to comment
on the record within 60 days of EPA's notification of potential liability. EPA
makes significant efforts to involve PRPs as early in the process as possible.
When PRPs are identified late in the process, they may provide EPA with
comments at that time. EPA will consider comments which are submitted after
the decision document is signed in accordance with the criteria of
300.825(c). This is true no matter when the PRP is identified in the process.
EPA believes that the current rule is sufficient for granting these late-
identified PRPs the opportunity for submitting late comments for the record.
One commenter stated that new information that confirms or substantiates
prior public comment should be made part of the record, even after a ROD is
signed. EPA is not required by statute or regulation to consider these
comments, although a lead agency may, and frequently does, consider post-ROD
comments it considers to be significant -- in which case both the comment and
the lead agency's response are part of the record.
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Finally, EPA is making a minor change to ' 300.825(b) on additional
public comment periods to clarify that, in addition to comments and responses
to comments, documents supporting the request for an additional comment period,
and any decision documents would be placed in the administrative record file.
Although this is what EPA intended in the proposal, a clarification is
necessary to ensure consistency.
Final rule: EPA is promulgating ' 300.825 as proposed except for an addition
to the last sentence of section (b) as follows: "All additional comments
submitted during such comment periods that are responsive to the request, and
any response to these comments, along with documents supporting the request and
any final decision with respect to the issue, shall be placed in the
administrative record file."
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SUBPART J — USE OF DISPERSANTS AND OTHER CHEMICALS
The following sections discuss comments received on Subpart J and EPA's
responses.
Name: Sections 300.900 - 300.920. General.
Existing rule: Section 300.81 described the purpose and applicability of
existing Subpart H (now Subpart J), and ' 300.82 defines the key terms used in
the regulation. Section 300.83 provides that EPA shall maintain a schedule of
dispersants and other chemical or biological products that may be authorized
for use on oil discharges called the "NCP Product Schedule."
Section 300.84 sets forth the procedures by which an OSC may authorize
the use of products listed on the NCP Product Schedule. The section provides
that an OSC, with concurrence of the EPA representative to the RRT and the
concurrence of the state (s) with jurisdiction over the navigable waters (as
defined by the CWA) polluted by the oil discharge, may authorize the use of
dispersants, surface collecting agents, and biological additives listed on the
NCP Product Schedule.
This section also provides that if the OSC determines that the use of a
dispersant, surface collecting agent, or biological additive is necessary to
prevent or substantially reduce a hazard to human life, and there is
insufficient time to obtain the needed concurrences, the OSC may unilaterally
authorize the use of any product, including a product not on the NCP Product
Schedule. In such instances, the OSC must inform the EPA RRT representative
and the affected states of the use of a product as soon as possible and must
obtain their concurrence for the continued use of the product once the threat
to human life has subsided. This provision eliminates delays in potentially
life-threatening situations, such as spills of highly flammable petroleum
products in harbors or near inhabited areas. Although they will not be listed
on the Schedule, this section also provides for authorization of the use of
burning agents on a case-by-case basis. The use of sinking agents is
prohibited.
Section 300.84 explicitly encourages advance planning for the use of
dispersants and other chemicals. The OSC is authorized to approve the use of
dispersants and other chemicals without the concurrence of the EPA
representative to the RRT and the affected states if these parties have
previously approved a plan identifying the products that may be used and the
particular circumstances under which their use is preauthorized.
Section 300.85 details the data that must be submitted before a
dispersant, surface collecting agent, or biological additive may be placed on
the NCP Product Schedule. Section 300.86 describes the procedures for placing
a product on the Product Schedule and also sets forth requirements designed to
avoid possible misrepresentation or misinterpretation of the meaning of the
placement of a product on the Schedule, including the wording of a disclaimer
to be used in product advertisements or technical literature referring to
placement on the Product Schedule.
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Appendix C details the methods and types of apparatus to be used in
carrying out the revised standard dispersant effectiveness and aquatic toxicity
tests. Appendix C also sets forth the format required for summary presentation
of product test data.
Proposed rule: Proposed Subpart J is very similar to Subpart H and contains
only minor revisions. Section numbers and references to other sections and
subparts have been changed where appropriate. Technical changes and minor
wording changes to improve clarity have also been made.
Definitions formerly presented in Subpart H have been moved to Subpart A,
and a new definition has been added for miscellaneous oil spill control agents.
Accordingly, a list of data requirements for miscellaneous spill control
agents is proposed to be added to ' 300.915. The definition for navigable
waters is as defined in 40 CFR 110.1.
Section 300.910, which addressed "Authorization of use," was modified
slightly in the proposed regulation to emphasize the importance of obtaining
concurrence for the use of dispersants and other chemicals from the appropriate
state representatives to the Regional Response Team (RRT) and the DOC/DOI
natural resource trustees "as appropriate."
Response to comments: 1.Involvement of DOC/DOI trustees. Many commenters
opposed the inclusion of the DOC/DOI trustees in
start 55 FR 8809
the authorization of use procedure, ' 300.910(a). Noting that dispersants must
be used quickly to be effective, commenters asserted that the decision-making
process for responding to an oil spill is already too time-consuming and
requires too many people to make a timely decision. At most, several
commenters suggested, the DOC/DOI trustees should be consulted rather than
having a concurrence. Other commenters recommended that the OSC be able to act
unilaterally or be required to obtain concurrences from only one other entity
such as the affected state RRT representative or the National Oceanic and
Atmospheric Administration (NOAA) Scientific Support Coordinator (SSC).
In response, as discussed in the preamble to the proposal, the decision
to use a chemical is highly dependent upon specific circumstances, locations
and conditions which must be assessed by the OSC, and the EPA and the state RRT
representative and DOC/DOI trustees are in a unique position to understand
local conditions and to collect and coordinate quickly the necessary local
information. Further, to facilitate a timely decision, the preamble urged
early involvement of the EPA and state RRT representatives and DOC/DOI
trustees, as appropriate. The intention of the addition of the DOC/DOI
trustees was not to make the process more cumbersome, but to reflect the
concurrence procedures that are already actually applied. However, EPA
believes that the many comments concerning this issue have raised a significant
distinction regarding concurrence during an emergency, which should be a
streamlined procedure, and concurrence during a planning procedure. The final
rule will be revised, therefore, to recognize that distinction. It will return
to the authorization language of the previous Subpart H with the addition of
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the provision that DOC/DOI trustees be consulted, as appropriate. Language has
been added to ' 300.910(e), however, to require that the DOC/DOI trustees
concur with advance authorizations of the use of dispersants, surface
collecting agents, biological additives, or miscellaneous oil spill control
agents and the use of burning agents. EPA believes that this change reflects
the current concurrence process that is actually used in both preplanning and
operational approval situations and retains for the OSC the obligation to seek
the consultation, when practicable, of the natural resource trustees in an
emergency situations, but retains the flexibility to authorize the use of
chemicals in such situations by a streamlined procedure when necessary.
Some commenters supported the extension of the concurrence authority
granted in ' 300.910(a) to the DOC/DOI trustee agencies to include pre-planning
for the use of chemical and biological agents outlined in paragraph (e) of this
section. Although the DOC/DOI concurrence requirement has been deleted from
paragraph (a) of the Authorization of use section, concurrence of the DOC/DOI
trustee agencies will be required before a chemical or biological agent can be
pre-authorized.
2. Approval and concurrence. Several commenters supported the concept of
"pre-approval" of dispersants suggesting that the EPA encourage advance
planning, and several commenters implied that this provision had been removed
in proposed Subpart J. EPA believes that ' 300.910(e) continues to endorse the
concept that RRTs make preauthorization determinations. This section is
essentially unchanged from the previous Subpart H.
Some commenters suggested that the responder be able to unilaterally
authorize the use of surface collecting agents or similar compounds which limit
the spread of oil or can enhance its recoverability. EPA does not believe and
has been provided with no substantial evidence to support a determination that
there is any reason to exempt surface collecting agents or similar products
from the general requirement for state and RRT concurrence. EPA intends that
RRT advance planning under ' 300.910(e) be used to address where the use of
such agents should be encouraged or restricted on a regional basis.
3. Dispersants. Several commenters supported a requirement that
dispersants be considered on an equal basis with other spill management tools
or be considered as a first response option. Conversely, two commenters
recommended that the NCP state a clear policy to the effect that dispersants
are a less desirable choice and should be considered only when the threat to
human life and property will not allow for containment and removal. EPA
believes that the circumstances surrounding oil spills to navigable waters and
the factors influencing the choice of a response method or methods are many and
that the NCP should not indicate a preference for one cleanup method over
another. Section 300.310(b) states that of the numerous chemical or physical
methods that may be used to recover spilled oil or mitigate its effects, the
chosen methods shall be the most consistent with protecting public health and
welfare and the environment.
4. NCP Product Schedule. Commenters suggested that the listing of a
product on the NCP Product Schedule should constitute "pre-approval" for the
use of those products, subject to a series of well-defined guidelines such as
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those developed by American Society of Testing and Materials (ASTM) Committee
F-20. As an alternative, they suggested that Subpart J should include an
additional section containing those products that are "pre-approved."
Placement of a product on the NCP Product Schedule currently does not mean that
EPA has confirmed the safety or effectiveness of the product or in any way
endorses the product. The purpose of the standardized testing procedures set
out in Appendix C is to ensure that OSCs have comparable data regarding the
effectiveness and toxicity of different products. The circumstances under
which dispersants and other chemicals may be used are many. It is
inappropriate, therefore, to establish generic criteria that could be used to
determine whether a product is or is not appropriate for a particular use under
all circumstances. As discussed earlier, therefore, EPA believes that the RRTs
deliberations provide the best forum to make determinations as to whether the
use of a dispersant or other chemical should be approved for use in a
particular situation under all the circumstances of the spill and its location.
A commenter noted that California, as well as other states, has
promulgated more restrictive lists of permitted oil spill cleanup agents and
recommended that this fact should be noted in the NCP. EPA believes that the
RCP is the appropriate document to recognize these products. In situations
that pose a threat to human life, this same commenter objected to the provision
that permits the OSC to authorize products not listed on the NCP Product
Schedule and products that have not passed state tests which evaluate
performance and safety. The commenter also questioned the efficacy of
stockpiling such products in sufficient volumes and close enough to potential
spill locations to be of any use. EPA does not agree with this recommendation.
A life-threatening oil discharge such as a spill of highly flammable petroleum
products in harbors or near inhabited areas may occur at a location where
chemical agents on the Schedule or state lists are not immediately available
for a wide variety of reasons. In such a case, EPA believes that the OSC must
have the discretion to use any products that, in
start 55 FR 8810
his professional judgement, would effectively and expeditiously mitigate the
threat to human life.
Another commenter suggested that dispersant test applications be
conducted on a spill concurrently with the deliberations of the RRT regarding
the authorization of a dispersant in a specific situation. EPA believes that
such a procedure could undermine the role of the RRT. Instead, EPA believes
that the most effective way to streamline the decision to use or not to use
chemical countermeasures, is for the RRTs to continue moving forward with pre-
authorization planning efforts.
A commenter asserted that acceptance of a proposed oil spill control agent
for inclusion in the NCP Product Schedule must be predicated on EPA's judgement
that the agent meets some minimum criteria for the proposed use. Currently, the
data requirements for placement of a product on the Schedule are designed to
provide sufficient data for OSCs to judge whether and in what quantities a
dispersant may safely be used to control a particular discharge. As noted
earlier, the standardized testing procedures in Appendix C are intended to
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ensure that OSCs have comparable data regarding the product's effectiveness,
toxicity and other characteristics. EPA has historically recognized this
situation by providing the type of case-specific approval that has been the NCP
policy regarding the use of chemical countermeasures for a great many years.
EPA, however, recognizes the value of establishing minimum criteria that would
limit which such products could be considered by the Responsible Party and/or
the OSC on spills into navigable waters. Therefore, EPA is in the process of
examining the dispersant authorization policies of other countries,
particularly with regard to the application of minimum criteria or standards.
A study to re-evaluate the toxicity test in light of state-of-the-art
developments is also underway. EPA believes that defining minimum criteria
should be considered and invites recommendations from interested parties
regarding threshold criteria for effectiveness and toxicity of dispersants and
other chemical agents.
5. Other comments. Several commenters suggested that the NCP include a
requirement to use the EPA's Computerized Decision Tree (CDT) for oil spill
response. EPA recognizes that the CDT is a tool to assist in making dispersant
use or non-use decisions but EPA believes that mandating its use in all
situations is inappropriate.
Some commenters suggested that all parties to a dispersant use decision be
required to have hands-on training in oil spill containment, recovery, cleanup,
and dispersants and other chemical countermeasures from a recognized authority.
While this appears to be a worthy goal, it would be difficult to regulate on a
national basis, both from the perspective of certifying training programs and
monitoring RRT members who have or have not received training. EPA believes
that these types of training requirements are best addressed on a regional
basis and not by regulation.
A commenter suggested that there should be a rapid and simplified way to
obtain local approval to carry out field exercises and tests on real oil with
real dispersants in limited quantities. EPA believes that the NCP does not
need to be amended to address this point and refers the commenter to 40 CFR
110.9. State RRT representatives can offer advice about compliance with their
regulations on the authorization of intentional spills for research and
demonstration purposes.
One commenter recommended that the third sentence in
300.910(e) should be changed to read: "If the RRT representative with
jurisdiction over the waters of the area to which a RCP applies approves in
advance the use of products as described in the NCP Product Schedule, the OSC
may authorize the use of the products without obtaining the specific
concurrences described in paragraph (a) of this section." EPA disagrees with
this recommendation. While the addition to the inclusion of the DOC/DOI trustee
agencies in any pre-authorization decision has been addressed earlier, EPA
would like to emphasize the importance of obtaining the concurrence of the
affected states in pre-planning agreements and believes that specific mention
of the state role will accomplish this.
Final rule: Proposed Subpart J has been revised as follows:
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1. "Hazardous Substance Releases [Reserved]" has been added to
300.905(b) to clarify that ' 300.905(a) applies only to oil discharges.
2. Sections 300.910(a), (b) and (c) have been revised to state that the
OSC should consult with the DOC and DOI natural resource trustee, rather than
receive their concurrence, on the use of dispersants, burning agents, etc.
3. Section 300.910(e) has been revised to add a reference to the DOC and
DOI natural resource trustees.
The references to ASTM standards in ' 300.915 have been revised.
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APPENDIX C TO PART 300 — REVISED STANDARD DISPERSANT EFFECTIVENESS AND
TOXICITY TESTS
No comments were received on the proposed revisions to Appendix C to Part
300. The two proposed technical corrections have been made to Appendix C.
First, in the calculations sections, 2.5 and 2.6, the formulas of equations
(2), (3), and (5) for concentration of oil (Cdo) in the sample, dispersant
blank correction (D) , and oil blank correction (OBC) have been corrected.
Second, the units of viscosity (item 3, part IX in section 4.0) have been
changed from furol seconds to centistokes. Last, the new 1988 ASTM standards
has been cited for reference to viscosity in centistokes.
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APPENDIX D TO PART 300 — APPROPRIATE ACTIONS AND METHODS OF REMEDYING
RELEASES
No comments were received on the proposed Appendix D to Part 300. EPA is
promulgating Appendix D as proposed. Appendix D includes materials from
existing ' 300.68 (j) on appropriate actions at remedial sites and existing
300.7 0 on methods for remedying releases. The appendix describes general
approaches and lists specific techniques but is not intended to be inclusive of
all possible methods of addressing releases. A lead agency may respond to
types of releases and employ techniques other than those that are listed,
depending on the particular circumstances. EPA believes that the provisions in
existing '' 300.68 (j) and 300.70 are not appropriate for inclusion in proposed
Subpart E, which has been structured to focus on the sequence of response
procedures. Because the materials do not impose any requirements or
restrictions, they are appropriate for an appendix. It is intended that
parties conducting response actions should consider the information provided in
Appendix D.
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III. SUMMARY OF SUPPORTING ANALYSES
A. Regulatory Impact Analysis of Revisions to CERCLA and the NCP.
There are two economic documents supporting today's final rule. The
first (the September 1988 RIA) was prepared in September 1988 and supported the
proposed rule (53 FR 51394). EPA has
start 55 FR 8811
since updated several of the key assumptions used in the September 1988
economic analysis and has prepared a second economic document entitled,
"Regulatory Impact Analysis of Revisions to CERCLA and the National Contingency
Plan" (November 1989 RIA). Both the September 1988 RIA and the November 1989
RIA are available in the Superfund Document Room of the U.S. Environmental
Protection Agency, 401 M Street, S.W., Washington, D.C., 20460.
Both RIAs estimate total and incremental costs to the Fund, states,
federal agencies, and responsible parties of implementing the remedial program
during the period FY87 through FY91, the duration of reauthorization of the
Superfund program. EPA has focused its analyses on four provisions with
incremental costs and benefits attributable directly to the 1986 CERCLA
amendments: (1) selection of remedy; (2) removals; (3) water restoration; and
(4) publicly-operated sites. The impacts of these provisions are attributable
directly to the 1986 CERCLA amendments, rather than to the NCP revisions,
because in these areas EPA chose to retain the flexibility of the statutory
language; the NCP essentially codifies the statutory requirements. The RIAs
estimate the incremental costs of the provisions against a baseline defined by
the requirements of CERCLA as specified in the 1985 NCP. The 1985 NCP is the
proper baseline for the analysis of changes attributable to the statutory
amendments because the 1985 NCP is the legal framework that defines response
activities in the absence of the amendments to CERCLA.
The November 1989 RIA updates estimates for only the selection of remedy
and water restoration provisions in today's final regulation. The analyses of
the other provisions have not been updated because they did not rely on
quantitative analyses, and no new data have been developed that would allow a
quantitative analysis. In addition, the November 1989 RIA provides a new
analysis of the costs of narrowing the range of risks to be considered in
developing and selecting remedies. A brief summary of the analyses presented
in the November 1989 RIA is provided below.
1. Selection of remedy. The new CERCLA preference for reducing mobility,
toxicity, and volume of contaminants at a site is assumed to be a preference
for remedies that use treatment as a principal element. The analysis of the
Environmental Protection Agency, "Regulatory Impact Analysis in Support of
the Proposed Revisions to the National Oil and Hazardous Substances Pollution
Contingency Plan," Office of Solid Waste and Emergency Response, September
1988 .
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overall cost of the selection of remedy incorporates several assumptions:
o The estimated costs of treatment and containment remedies have not
been updated since the September 1988 RIA. The estimates of
selection of remedy costs were developed using cost data from 30
RODs, signed during the FY82 to FY86 period, that contained
information on capital and operation and maintenance (O&M) costs for
both treatment-based remedies and containment-based remedies at a
site.
o The percentage of remedial action (RA) starts in FY87 and FY88
selecting treatment over containment was assumed to be the same as
the percentage of RODs signed that selected treatment alternatives in
the same year. Because of the time lag between ROD signature and the
actual RA start, this assumption leads to an overestimate of the cost
over the period studied, but provides a more accurate estimate of the
potential impacts beyond the reauthorization period of CERCLA.
o The estimated number of RA starts in FY87 and FY88 was based on
actual RA starts as reported in the CERCLA Information System
(CERCLIS) .
o The number of RA starts in FY89 through FY91 were estimated based on
the mandatory schedules in section 116 of CERCLA for 175 RA starts by
the end of FY89 and an additional 200 starts by FY91.
o The fraction of RA starts in FY89 through FY91 that would have
treatment as the selected option was assumed to rise to 66 percent in
FY89 and 80 percent in FY90 and FY91 as a consequence of the
selection of remedy provisions in the 1986 CERCLA amendments.
EPA estimates that the total cost of the selection of remedy provisions
in the 1986 amendments to CERCLA, during the FY87 through FY91 period, is $8.7
billion: $3.95 billion to the Fund; $0.58 billion to states; $3.15 billion to
responsible parties; and $1.03 billion to federal agencies. The 5-year present
value of the estimated incremental cost of the selection of remedy provisions
over the costs imposed already by the 1985 NCP is $2.9 billion: $1.32 billion
to the Fund; $0.14 billion to states; $1.05 billion to responsible parties; and
$0.41 billion to federal agencies. Changes in program administrative costs are
not included in these estimates.
A sensitivity analysis was included in the September 1988 RIA to
determine how the cost estimates change if the most important assumptions used
to derive the estimates are altered. In addition to varying the cost
parameters used in the analysis, the frequency of use of treatment under the
1986 CERCLA amendments is varied between 50 percent of sites or operable units
using treatment to 100 percent using treatment for the period FY89 through
FY91. In the November 1989 RIA, the analysis of the effects of the frequency
of use of treatment has been updated; the results of the sensitivity analysis
estimates the total incremental costs of the selection of remedy provisions to
be between $1.3 and $4.3 billion, with a best estimate of $2.9 billion.
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The 1986 amendments to CERCLA require RAs to comply with state applicable
or relevant and appropriate requirements (ARARs) that are more stringent than
federal ARARs. To the extent possible, therefore, cost estimates used in the
November 1989 RIA are for remedies expected to comply with federal ARARs and
those state ARARs more stringent than the federal standards. The September
1988 RIA concluded that compliance with more stringent state ARARs may increase
the costs of an RA by about $6.6 million. However, EPA does not believe that
an additional $6.6 million will be incurred to meet state ARARs for every RA
under CERCLA because many RODs signed prior to the 1986 CERCLA amendments
already showed evidence of compliance with state ARARs and many states do not
have relevant standards more stringent than federal standards.
2. Water restoration provisions. Under the 1985 NCP, states held primary
responsibility for financing O&M costs associated with an RA at a Fund-lead
site. During the first fiscal year after completion of the capital expenditure
at a site, the Fund financed a maximum of 90 percent of the operational costs
until EPA was assured that the remedy was operational and functional. In each
subsequent year, the state financed 100 percent of O&M costs. The 1986
amendments to CERCLA change this funding relationship for RAs involving
treatment to restore ground water or surface water. Long-term costs of
treatment of contaminated ground water or surface water now are defined to be a
component of the RA when treatment is being used to restore an aquifer or
surface-water body. Hence, this provision transfers financing responsibilities
at Fund-lead sites using water restoration as part of the selected remedy from
the states to the Fund. Under the new provision, the Fund finances 90 percent
of the costs of water restoration for up to 10 years; states finance the
remaining 10 percent of costs during these years. As discussed in the November
1989 RIA, EPA estimates that approximately $50.5 million in obligations to pay
for water
start 55 FR 8812
restoration will be transferred from states to the Fund over the FY87-91 period
as a result of the provisions on ground-water and surface-water restoration in
the 1986 amendments to CERCLA. Because the provision results only in transfers
of obligations to pay from states to the Fund, it does not give rise to real
economic costs or real economic benefits.
3. Use of risk range. As part of its continuing analysis, EPA has
evaluated the incremental costs between remedies selected at the 10 6 and the
_ ~j
10 risk levels. EPA identified two potential activities that would likely be
_ ~j
affected: (1) evaluation of remedies capable of achieving a 10 risk level;
and (2) selection of such a remedy.
Most feasibility studies (FSs) and Records of Decision (RODs) completed
to date include estimates of costs of achieving some stated threshold goal
(e.g., MCLs, ARARs); other FSs and RODs are more detailed and estimate the
effectiveness of various remedial alternatives in achieving specific risk
_ g
target levels (e.g., 10 risk, "high," "medium," or "low" risk). Only a few
FSs or RODs completed to date, however, actually contain cost estimates
associated with achieving different risk levels or with achieving a risk level
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_7
as low as 10
Because of the sparsity of data, EPA could not perform a detailed
analysis of the incremental cost or cost savings attributable to different
acceptable cleanup levels and, in particular, to establishing a broader or
narrower acceptable risk level. In analyzing the costs incurred to date in
developing different FSs, however, it became clear that generally the
incremental cost of conducting a detailed evaluation of an alternative at one
risk level versus "n" risk levels is minor relative to the cost of the FS.
Essentially, the risk assessment and costing exercise relies on some sunk
(i.e., fixed) costs associated with developing relationships (e.g., curves)
that relate the amount of material to be treated to the risk levels that can be
achieved. Once the relationship is developed, it is a relatively simple matter
to generate estimates for one or any number of risk levels. EPA acknowledges,
however, that the broader risk range may, in certain instances, result in an
increased level of effort expended to evaluate additional alternatives or to do
a more detailed analysis of existing alternatives.
EPA believes the greatest cost attributable to a broader risk range is
_7
associated with the implementation of a remedy that can achieve a 10 risk
level. Based on data from the few sites that evaluated different alternatives
at a range of risk levels, EPA estimates that the incremental cost of cleaning
up to a 10"7 versus a 10~6 risk level ranges from approximately $700,000 to
$10.4 million per site. These incremental costs represent a percentage cost
increase from 13 to 50 percent. Because the survey was limited, there may be
_7
other sites where the percentage cost increase associated with cleanup to 10
_ g
rather than 10 may be lower or higher than 13 to 50 percent.
B. Executive Order No. 12291
Regulations must be classified as major or nonmajor to satisfy the
rulemaking protocol established by Executive Order (E.O.) No. 12291. This
Executive Order establishes the following criteria for a regulation to qualify
as a major rule.
1. An annual effect on the economy of $100 million or more;
2. A major increase in costs or prices for consumers,
individual industries, federal, state, or local
government agencies or geographic regions; or
3. Significant adverse effects on competition, employment,
investment, productivity, innovation, or on the
ability of United States-based enterprises to compete
with foreign-based enterprises in domestic or export
markets.
Based on the economic analyses summarized above, the revised NCP is a
major rule because it will have an annual effect on the economy of $100 million
or more. This regulation has been submitted to the Office of Management and
Budget for review under Executive Order Nos. 12291 and 12580.
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C. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act of 1980, agencies must
evaluate the effects of a regulation on small entities. If the rule is likely
to have a "significant impact on a substantial number of small entities," then
a Regulatory Flexibility Analysis must be performed. EPA certifies that
today's rule will not have a significant impact on a substantial number of
small entities.
Small businesses generally will be affected only by the changes that
address selection of remedy. The cost of a Superfund cleanup, whether using
containment-based remedies or treatment-based remedies, can be quite large and,
in some cases, may be beyond the financial resources of a responsible party
(RP). Because RPs can be in different industry sectors and face different
market structures, each RP's ability to finance Superfund response actions
could be very different. The analytical framework used in Chapter 8 of the
September 1988 RIA to estimate the economic effects of the CERCLA provisions on
typical RPs relies heavily on publicly-available financial information and
makes the conservative assumption that each RP would be solely responsible for
the entire RA cost. The analysis includes two financial tests performed on a
sample of 15 firms selected randomly and varying in size. One test (the net
income test) compares average response costs to the sample firm's net income or
cash flow. The second test (a modified Beaver ratio) compares the sample
firm's cash flow to its total liabilities, including response costs. On the
basis of this analysis, EPA has determined that the revisions to the NCP will
not result in a significant additional impact on a substantial number of small
businesses. That is, to the extent that small businesses are significantly
impacted under the revisions to the NCP, they were already significantly
impacted under the 1985 NCP.
Municipalities also could be affected by the revisions to the selection
of remedy provisions in the NCP because municipalities can be RPs. NPL sites
owned by municipalities tend to be municipal wellfields and landfills. The
cleanup of wellfields is undertaken to restore drinking water to a community
either by pumping and treating a contaminant plume or building an alternative
water distribution system. The contaminant plume usually has not been created
by municipality actions; instead, the plume may have migrated from a nearby
industrial waste site. As a result, the municipality is not likely to be
liable for the costs of response actions. At municipal landfill sites, or
other landfill sites that have accepted municipal wastes, the municipality also
is not likely to be liable for 100 percent of response costs, because other
entities typically have contributed to the site problem. The range of capital
costs of cleanups at municipally-owned sites with RODs signed over the FY82 to
FY86 period is from $304,000 for construction of an alternative water supply
system to $23.2 million to cap a 90 acre landfill site.
The level of involvement of small municipalities in the Superfund program
is not expected to change under the 1986 CERCLA amendments. The sites at which
municipalities are most likely to be involved are not expected to be affected
greatly by the new CERCLA selection of remedy provisions. The costs of
cleaning up municipal landfills in particular are not expected to increase
substantially as a result of the
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start 55 FR 8813
CERCLA amendments because the typical size of such sites limits the feasibility
of implementing treatment-based remedies.
D. Paperwork Reduction Act
The information collection requirements contained in today's rule have
been approved by the Office of Management and Budget (OMB) under the provisions
of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and have been assigned
OMB control number 2050-0096.
Public reporting burden for this collection of information is estimated
to be a weighted average of 2,620 hours per respondent, including time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the collection of
information. Respondent means states and other entities (excluding the federal
government) conducting required activities associated with remedial actions.
Send comments regarding the burden estimate or any other aspect of this
collection of information, including suggestions for reducing this burden, to
Chief, Information Policy Branch, PM-223, U.S. Environmental Protection Agency,
401 M Street, S.W., Washington, D.C., 20460; and to the Office of Information
and Regulatory Affairs, Office of Management and Budget, Washington, D.C.,
20503, marked "Attention: Desk Officer for EPA."
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LIST OF SUBJECTS IN 40 CFR PART 300
Air pollution control, Chemicals, Hazardous materials, Hazardous
substances, Incorporation by reference, Intergovernmental relations, Natural
resources, Occupational safety and health, Oil pollution, Reporting and
recordkeeping requirements, Superfund, Waste treatment and disposal, Water
pollution control, Water supply.
Dated:
William K. Reilly,
Administrator.
Therefore, 40 CFR Part 300 is amended as follows:
1. The authority citation for Part 300 is revised to read as follows:
Authority: 42 U.S.C. 9601-9657; 33 U.S.C. 1321(c)(2); E.O. 11735, 38 FR
21243; E.O. 12580, 52 FR 2923.
2. Subparts A through H of Part 300 are revised, Subparts I and J are
added, and Subpart K is added and reserved to read as follows:
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