«on implementing authorities to determine whether a site should be excluded from being an “eligible response site” under section 101(41)(C)(i). ...»
on implementing authorities to determine whether a site should be excluded from being an
“eligible response site” under section 101(41)(C)(i).
This memorandum is divided into four parts. Part II provides background on the
definition of an eligible response site, the determinations the Regions will make in respect to this
definition, and the implications of those determinations. Part III of this memorandum provides
guidance to the Regions for making these determinations in conjunction with future site assessment decisions (see also the flowchart provided in Attachment A). Part IV of this memorandum provides guidance to the Regions on making a single determination for sites with past site assessment decisions.
This policy and any internal procedures adopted for its implementation are intended exclusively as guidance for employees of the U.S. Government. This policy is not a rule and does not create any legal obligations. Whether and how the United States applies the policy to any particular site will depend on the facts at that site.
II. Background The term eligible response site is defined in CERCLA section 101(41). Generally, section 101(41)(A) defines an eligible response site as a site that meets the definition of a “brownfield site” in section 101(39).1 Section 101(41)(B) includes certain sites otherwise excluded from the definition and authorizes EPA to include certain additional sites as eligible response sites based on site-specific statutory criteria. Section 101(41)(C), the focus of this guidance, authorizes EPA to exclude certain sites from the definition of an eligible response site.
Under section 101(41)(C)(i), eligible response sites do not include sites at which EPA “conducts or has conducted a preliminary assessment (PA) or site inspection (SI) and, after consultation with the State, determines or has determined that the site obtains a preliminary score sufficient for possible listing on the National Priorities List or otherwise qualifies for listing on the National Priorities List.” Section 101(41)(C)(i) also provides that a site excluded under this provision may become an eligible response site again if EPA determines no “further federal action will be taken.”2 The definition of a “brownfield site” contains a number of exclusions that should be reviewed to determine if a site in question meets the base definition of an eligible response site.
See CERCLA, 42 U.S.C. § 9601(39)(A).
EPA expects that the President will delegate the authority to make determinations under section 101(41)(C) to the Administrator of U.S. EPA through forthcoming changes to Executive Order 12580. We anticipate that the Administrator will redelegate, through EPA Delegation 14the authorities in section 101(41)(C)(i) to the Regional Administrators with the authority to further delegate to the Branch Chief level. This guidance assumes this delegation structure will The definition of eligible response site affects sections 105(h) and 128(b). Section 105(h) outlines circumstances when EPA should conditionally defer an eligible response site from final listing on the National Priorities List (NPL).3 Generally, section 128(b) limits EPA’s authority at eligible response sites to take enforcement or cost recovery actions against persons who are conducting or have conducted a response action in compliance with a State program that governs response actions for protection of public health and the environment. If the Region excludes a site from being an eligible response site, that site will not be subject to the deferral provisions in section 105(h) and the limitations on EPA’s enforcement and cost recovery authorities under section 128(b) will not apply at that site.4
III. Making Determinations under Section 101(41)(C)(i)
Section 101(41)(C)(i) provides authority to make two determinations affecting a site’s eligible response site status. First, a determination after a PA or an SI that a site obtains a preliminary score sufficient for possible listing or otherwise qualifies for listing operates to exclude a site from the definition of eligible response site. Second, the Region may make a determination that “no further federal action will be taken” at a site previously excluded; thus, making that site an eligible response site.
EPA will make these determinations only for sites that are entered in CERCLIS,5 meaning the site warrants EPA assessment.6 This part sets forth EPA’s general policy regarding when and be made final and we will notify the Regions if this guidance is inconsistent with the final version of Delegation 14-17.
The NPL is “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 remedial evaluation and response.” 40 C.F.R. § 300.5 (2001).
Determinations under section 101(41)(C)(i) to exclude a site from the definition of an eligible response site have no affect on EPA’s authority to provide grant or loan funding under sections 104(k) (brownfields funding) and 128(a) (state and tribal response program funding).
“CERCLIS is the abbreviation of the CERCLA Information System, EPA’s comprehensive data base and data management system that inventories and tracks releases addressed or needing to be addressed by the Superfund program.” 40 C.F.R. § 300.5.
Generally, sites assessed using brownfields grant funds or under Targeted Brownfields Assessment program will not enter the CERCLIS universe.
how in the current assessment process the Regions generally should make these determinations.7 Additionally, this part addresses the EPA/State consultation requirement under section 101(41)(C)(i).
A. Determinations to Exclude a Site
Typically, Regions should exclude a site from the definition of an eligible response site only after an SI has been conducted,8 and the site has achieved a preliminary score sufficient for possible listing on the NPL.9 The nature and quality of the information available after an SI should allow Regions to make these determinations with a high level of confidence. However, since the information available at the time of a PA or SI will vary from site to site, Regions may be able to determine that a site has a preliminary score sufficient for possible listing at an earlier stage in the assessment process. Regions should make the determination of whether a site’s preliminary score is sufficient for possible listing at the point in the site assessment process when the information regarding site conditions allows the decision to be made with a high level of confidence. By focusing on the nature and quality of the information as the basis for this decision, EPA hopes to minimize situations where a Region excludes a site but after further assessment determines that the site conditions do not actually warrant a preliminary score sufficient for possible listing.
Therefore, in order to make the determination after a PA and before the SI, a Region generally should have enough information to conclude with a high level of confidence that the site has achieved a preliminary score above the current NPL threshold of 28.5. For example, a pre-SI determination generally should be appropriate when monitoring data demonstrate that there is human exposure (e.g., drinking water contaminated by a release at the site, contaminated soils on residential properties, etc.).
References to the determinations by the “Regions” in this guidance refer to determinations made by the person in any particular Region who has the delegated authority to make determinations under CERCLA section 101(41)(C)(i).
This would include a combined PA/SI or an integrated assessment. Additionally, section 101(41)(C)(i) applies to PAs or SIs conducted by States through agreement with EPA.
Score refers to a numeric calculation made under the Hazard Ranking System (HRS) that will reflect the potential risk associated with a site. 40 C.F.R. pt. 300, Appendix A (2001).
Various tools have been developed that will provide an early indicator of whether a site “scores” sufficient for possible NPL listing. Under the current assessment process, “a preliminary score sufficient for possible listing” would be a preliminary score of 28.5 or greater.
Section 101(41)(C)(i) also provides that the term eligible response site does not include sites for which EPA determines that the site “otherwise qualifies for possible listing on the NPL.” There are two methods, in addition to qualifying based on an HRS score, by which a site may be added to the NPL. First, a site may be added to the NPL if a State designates it as the State’s highest priority. 42 U.S.C. § 9605(a)(8)(B), 40 C.F.R. § 300.425(c)(2). Second, a site may be added to the NPL if the Agency for Toxic Substances and Disease Registry issues a health advisory recommending disassociation of individuals from the release; EPA determines that the release poses a significant threat to public health; and, EPA decides it will be more cost-effective to use its remedial rather than its removal authority. 40 C.F.R. § 300.425(c)(3). Under these circumstances a Region should make a determination to exclude the site from the eligible response site definition.
Regions should review their decision-making procedures for preliminary assessment and site inspection reports. This review should evaluate whether changes are appropriate to ensure timely decision making on sites relative to section 101(41)(C)(i). Regions should also ensure that adequate procedures exist for creating a record for section 101(41)(C)(i) determinations.
Delegation 14-17 delegates the authority to make these determinations to the Regional Administrator with authorization to redelegate this authority to the Branch Chief level. The Region should have a clearly identified document that displays this determination that is signed by the regional official delegated the authority to make these determinations. The Regions should modify the appropriate decision documents as needed to include this determination. If a determination to exclude a site from the definition is based on State priority or an ATSDR health advisory (i.e., the site otherwise qualifies for listing) this information should be clearly identified in the determination.
2. Policy for Consultation with States and Indian Tribes
When the Region believes a site has obtained a preliminary score sufficient for possible listing, or otherwise qualifies for the NPL, the statute requires that the Region consult with the State prior to making the determination to exclude the site from the eligible response site definition. The Region should also consult with a Tribe in accordance with this policy when a site is on or near Indian tribal land. Regions should agree with States and Tribes upon a process for notification and consultation for sites that EPA proposes to exclude pursuant to section 101(41)(C)(i), including appropriate time frames for response. In some Regions, States or Tribes perform some or all of EPA’s PAs and SIs under a cooperative agreement; thus, the consultation requirement should be easy to satisfy through existing information exchanges. Where EPA conducts the PA or SI, the PA or SI reports supporting a determination should be forwarded to the relevant State and Tribe for review. To avoid any misunderstandings, the Regions, States, and Tribes should document these communications in writing. This might be accomplished through a form letter to accompany each report or by keeping internal records of any communications.
5 The Regions should ensure that States, Tribes, and the public can easily determine the status of a particular site. Regions can accomplish this goal in several ways. The Regions could compile and update quarterly a publicly available list (preferably online) of sites in each State, indicating those sites that the Region has determined are not eligible response sites, and any sites for which the Region has determined there will be no further federal action. This information might also be conveyed through regional online site descriptions or other online databases and non-electronic sources to make the information available to those without internet access. EPA intends to modify codes in CERCLIS to capture these determinations. The Regions should also consider how they intend to handle site-specific inquiries regarding the status of a site.
B. Determinations that No Further Federal Action will Be Taken
Section 101(41)(C)(i) authorizes EPA to designate a site previously excluded because it had obtained a preliminary score sufficient for possible listing or otherwise qualified for listing, an eligible response site by making a determination that “no further federal action will be taken” (NFFA determination). Depending on site-specific circumstances, the Regions generally should make this determination at one of two points in the current assessment process. First, if a Region determines that No Further Remedial Action is Planned (NFRAP) and the regional removal and legal enforcement programs do not anticipate removal and/or cost recovery actions with respect to the site, then it may be appropriate to make a NFFA determination in conjunction with the NFRAP decision. Second, where the Region makes a NFRAP determination and refers a site for removal assessment a NFFA determination generally should be made when the site is Archived from CERCLIS.10 Also, if consultations with the removal and legal enforcement programs prior to a NFRAP determination reveal current or potential removal, enforcement, or cost recovery actions, then a NFFA determination generally should be made when the site is Archived from CERCLIS and not in conjunction with a NFRAP determination.
Sites at which the Region has conducted a PA or SI and determined that the site has achieved a preliminary score sufficient for possible listing but have been referred or deferred to another program for cleanup generally should not receive a NFFA determination until the Region is confident that these sites will not require action under CERCLA. This would include sites Archived and deferred to RCRA or the Nuclear Regulatory Commission (NRC). Also, the Region generally should not make a NFFA determination for active CERCLIS sites being addressed under a State program until the response action is complete and the Region believes that no further federal action under CERCLA will be taken at that site.