Notice of Availability of Final Draft Guidance for Developing Superfund Memoranda of Agreement (MOA) Language Concerning State Voluntary Cleanup Programs

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5890-5]

Notice of Availability of Final Draft Guidance for Developing

Superfund Memoranda of Agreement (MOA) Language Concerning State

Voluntary Cleanup Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability and request for comments.

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SUMMARY: This notice announces the availability of the document ``Final

Draft Guidance for Developing Superfund Memoranda of Agreement (MOA)

Language Concerning State Voluntary Cleanup Programs'' and the Agency's

request for stakeholder comment on both aspects of the document, i.e.,

the final draft guidance and the site screening or designation process.

In this document, the U.S. Environmental Protection Agency is

encouraging its Regions to develop partnerships with States by

negotiating MOAs that delineate roles and responsibilities for the

cleanup of hazardous substance sites, such as Brownfields, that do not

pose the type of risk usually addressed by Federal Superfund National

Priorities List (NPL) cleanups. These MOAs are designed to facilitate

the expeditious cleanup of these lower risk sites under State voluntary

cleanup programs. This document sets out baseline criteria that EPA

will use to evaluate State voluntary cleanup programs. This evaluation

will be part of the negotiation of an MOA, or work planning document.

As explained more fully in the draft guidance, for those sites included

within the scope of the MOA, EPA will not exercise cost recovery

authority and does not generally anticipate taking removal or remedial

actions under the Comprehensive Environmental Response, Compensation

and Liability Act of 1980 (CERCLA or Superfund) at these sites except

under the limited circumstances detailed in the draft guidance.

DATES: Written comments must be postmarked or submitted by hand or

electronically by October 24, 1997. Due to the previous stakeholder

discussions on this guidance, including the February 27, 1997 open

meeting noticed in the February 13, 1997 Federal Register, this comment

period is not expected to be extended, and thus, this is likely to be

the final opportunity for public comment on this guidance.

ADDRESSES: To submit comments, the public must send an original and two

copies to Docket Number SFMOA, located at the Superfund Docket. The

official address is: U.S. EPA, Superfund Docket (MC5202G), 401 M

Street, N.W., Washington, D.C. 20460. Hand-delivered comments should be

taken to: U.S. EPA, Superfund Docket, 1235 Jefferson Davis Highway,

Crystal Gateway 1, First Floor, Arlington, VA 22202. (Also, see the

section under ``Supplementary Information'' regarding the paperless

office effort for submitting public comments.) The Superfund Docket is

open for public inspection and copying of supporting information from

9:00 a.m.-4:00 p.m., Eastern Time,

[[Page 47496]]

except for Federal holidays. The public must make an appointment to

review docket materials by calling 703-603-9232. The public may copy a

maximum of 100 pages from any regulatory document at no cost.

Additional copies cost $0.15 per page.

FOR FURTHER INFORMATION CONTACT: Linda Garczynski, Director, Outreach

and Special Projects Staff, Office of Solid Waste and Emergency

Response, U.S. Environmental Protection Agency, Mail Stop 5101, 401 M

Street, N.W., Washington, D.C. 20460, phone: (202) 260-4039, or Linda

Boornazian, Policy and Program Evaluation Division, Office of

Enforcement and Compliance Assurance, U.S. Environmental Protection

Agency, Mail Stop 2273A, 401 M Street, N.W., Washington, D.C. 20460,

phone: (202) 564-5144.

AVAILABILITY OF DOCUMENT: The Final Draft Guidance for Developing

Superfund Memoranda of Agreement (MOA) Language Concerning State

Voluntary Cleanup Programs follows this notice. In addition, the

document can be accessed electronically through the U.S. Environmental

Protection Agency's homepage at http://www.epa.gov/brownfields.

Background INFORMATION: States are developing voluntary cleanup

programs to speed up the cleanup of non-National Priorities List sites,

which, generally speaking, pose a lower risk than those sites listed on

the National Priorities List (NPL). These voluntary cleanup programs

pose an alternative to the conventional CERCLA or State Superfund-like

enforcement approach to cleaning up contaminated sites. Through State

voluntary cleanup programs, site owners and developers identify and

clean up sites by using less extensive administrative procedures. The

site owners and developers may then obtain some relief from future

state liability for past contamination. This approach encourages

cleanup of sites, such as Brownfields, that might otherwise not be

cleaned up because of limited Federal and State resources.

In addition, financial and real estate sectors are sometimes

reluctant to support the redevelopment of brownfields and lower risk

sites because they are concerned about potential liability under

CERCLA. Some developers have also expressed concern that the

uncertainty that can arise from potentially overlapping Federal/State

cleanup authorities can become a disincentive to cleanup and

redevelopment of these sites. This guidance addresses this concern by

clarifying EPA and State roles and responsibilities, which helps reduce

such uncertainty and promotes the cleanup and redevelopment of lower

risk sites such as Brownfields. As of August 1997, eleven States and

EPA Regions have signed Memoranda of Agreement clarifying their

respective roles at certain sites being addressed under State voluntary

cleanup programs.

This draft guidance includes a draft site designation or screening

process and proposes that this new process be used in conjunction with

the guidance to designate sites as either Tier II (lower risk sites

that are eligible for inclusion within the scope of an MOA concerning a

State voluntary cleanup program) or Tier I (higher risk sites of the

type that historically have been listed on the National Priorities

List). Tier I sites are not eligible for inclusion within the scope of

an MOA concerning a State voluntary cleanup program.

The Agency is requesting comment on both the draft guidance and the

site designation or screening process. EPA would like to receive

comments of both a general nature, e.g., on the usefulness of the MOA

approach to clarifying roles and responsibilities; the feasibility and

ease of implementation of the site designation or screening process; as

well as specific suggestions as to how the guidance or site tiering

process could be improved. In particular, EPA would appreciate feedback

and comment in the following areas:

Draft Guidance

1. Does the final draft guidance represent an appropriate balance

among assuring protective site cleanups; the appropriate level of

State, Federal and community involvement at voluntary cleanup sites;

and, encouraging cleanup and redevelopment of these sites, particularly

in the following areas?

a. Universe of sites eligible for inclusion within scope of MOA

b. Criteria for evaluating State voluntary cleanup programs

c. Level of Federal involvement (including provision of technical

or financial assistance), if any, in State voluntary cleanup programs

d. Level of Federal involvement, if any, in specific sites being

addressed under State voluntary cleanup programs

e. Methods for determining the protectiveness of voluntary cleanups

at lower risk sites.

f. Role of the community in voluntary cleanups

Site Designation and Screening Process

2. What type and amount of information is needed at each stage in

the decision process to reach a Tier I or Tier II decision?

3. Are the screening steps in the best logical sequence?

4. If there are nearby populations or sensitive environments, how

could EPA ensure that private parties would evaluate them to account

for changes in land use in the near or long-term?

5. What information/tools (e.g., software) are currently available

to the public that would allow them to collect the requested

information?

6. What are the resource implications for stakeholders who use

these tools at each step of the process, i.e., how much is the

estimated cost (in dollars and time) of conducting each step of the

process?

7. Are there preferred alternative mechanisms for screening sites?

If so, please describe briefly.

SUPPLEMENTARY INFORMATION:

Paperless Office Effort

EPA is asking prospective commenters to voluntarily submit one

additional copy of their comments on labeled personal computer

diskettes in ASCII (TEXT) format or a word processing format that can

be converted to ACSII (TEXT). It is essential to specify on the disk

label the word processing software and version/edition as well as the

name of the commenter. This will allow EPA to convert the comments into

one of the word processing formats utilized by the Agency. Please use

mailing envelopes designed to physically protect the submitted

diskettes. EPA emphasizes that submission of comments on diskettes is

not mandatory, nor will it result in any advantage or disadvantage to

any commenter. Rather, EPA is experimenting with this procedure as an

attempt to expedite our internal review and response to comments. This

expedited procedure is in conjunction with the Agency's ``Paperless

Office'' campaign.

Dated: August 29, 1997.

Timothy Fields, Jr.,

Acting Assistant Administrator, Office of Solid Waste and Emergency

Response.

Steven A. Herman,

Assistant Administrator, Office of Enforcement and Compliance

Assurance.

Oswer Directive--------------------------------------------------------

Guidance for Developing Superfund Memoranda of Agreement (MOA) Language

Concerning State Voluntary Cleanup Programs

This document gives guidance to EPA staff on how to draft MOAs

with States on State voluntary cleanup programs. It is not a

regulation, and does not create legally binding obligations on any

person, including States and EPA. Whether or not EPA follows

[[Page 47497]]

the guidance in any particular case will depend on the

circumstances. EPA may change the guidance in the future.

I. Purpose

This guidance will assist the U.S. Environmental Protection

Agency's (EPA) Regions and States in developing or amending Memoranda

of Agreement (MOA) 1 regarding EPA/State relationships with

respect to sites being addressed by State voluntary cleanup programs.

Regions should use this guidance in determining whether to acknowledge

the adequacy of a State voluntary cleanup program through an MOA. For

those sites included within the scope of the MOA, Regions and States

can agree that EPA will not exercise cost recovery authority and does

not generally anticipate taking a removal or remedial action

2 at certain sites being addressed by a State's voluntary

cleanup program except under limited circumstances. The decision to

sign an MOA is discretionary upon the part of the Regional

Administrator.

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\1\ These MOAs are developed under the National Contingency Plan

definition of a Superfund Memorandum of Agreement (SMOA), which is a

nonbinding, written document executed by an EPA Regional

Administrator and the head of a State agency to establish the nature

and extent of EPA and State interaction during the removal, pre-

remedial, remedial, and/or enforcement response process. The SMOA

generally defines roles and responsibilities; it is not a site-

specific document although attachments may address specific sites.

\2\ EPA may obtain access, conduct site assessment or

information gathering as necessary to determine whether an imminent

and substantial endangerment exists.

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II. Introduction

State Voluntary Cleanup Programs

A State voluntary cleanup program is an alternative to the

conventional CERCLA or State Superfund-like enforcement approach to

cleaning up contaminated sites. States are developing voluntary cleanup

programs to speed up the cleanup of non-National Priorities List sites,

which, generally speaking, pose a lower risk than those sites listed on

the National Priorities List (NPL). 3 These voluntary

cleanup programs are designed to achieve results that are acceptable to

the State in terms of costs and protection of the environment and human

health.

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\3\ The 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 remedial evaluation

and response.

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Many States have established voluntary cleanup programs. The key

ingredients of a documented State voluntary cleanup program include

established authority, investigative and remedial procedures, cleanup

targets appropriate to sites, State sign-off conditions and procedures,

and liability provisions. These voluntary cleanup programs allow

volunteers, such as site owners and developers, to identify and clean

up sites, to use less extensive administrative procedures, and to

obtain some relief from future state liability for past contamination.

These sites might otherwise not be cleaned up because of their

relatively low priority, and because these sites are too numerous for

other State or Federal cleanup programs to address within a reasonable

time frame.

State-established voluntary cleanup programs allow private parties

to initiate and proceed with a cleanup with varying levels of State

oversight and enforcement conditions. This guidance is intended to be

flexible enough to accommodate variability among State voluntary

cleanup programs; however, the guidance does describe a minimum set of

criteria that a State voluntary cleanup program should meet before EPA

signs an MOA with the State concerning its voluntary cleanup program.

In this guidance, EPA uses the term ``voluntary'' to mean ``private

party-initiated.'' It does not imply a lack of State oversight and/or

approval of cleanup activities. Some State voluntary cleanup programs

require the ``voluntary'' party to enter into an enforceable consent

agreement.

III. Implementation

A. Scope and Applicability

The principles outlined in this policy may apply to all sites,

except as specified below.

1. Those sites designated as Higher Risk (or Tier I)

sites,4 either under the screening process described in the

Attachment to this guidance, or under an alternative screening process

or mechanism proposed by the State and approved by EPA Headquarters,

are not eligible for inclusion within the scope of an MOA.

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\4\ Higher Risk (or Tier I) sites are sites that, while not

currently proposed for listing on the NPL, have greater potential

for being addressed under CERCLA authorities.

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2. Those sites proposed for or listed on the National Priorities

List (NPL); or, those sites where ranking packages proposing their

inclusion on the National Priorities List (NPL) are submitted to EPA

Headquarters, are not eligible for inclusion within the scope of the

MOA.

3. Those sites for which an order or other enforcement action is

issued or entered under CERCLA or sections 3008(h), 3013(a), or 7003(a)

of RCRA, and is still in effect, are not eligible for inclusion within

the scope of an MOA.

4. Those sites undergoing RCRA corrective action pursuant to RCRA

sections 3004(u), 3004(v) or 3008(h) are not eligible for inclusion

within the scope of an MOA. (However, see below for details on certain

situations where exceptions may be made to this restriction for

facilities or portions of facilities where correction action has not

yet been initiated under an order or permit.)

The Region and the State may agree to apply the principles of the

MOA to voluntary cleanups that have already begun if the State's

voluntary cleanup program met the requirements of this guidance at the

time those voluntary cleanups commenced. The MOA should clarify that

EPA is not waiving its claims for past costs under CERCLA or other

relevant authority (to the extent EPA has incurred such costs), and the

MOA does not affect EPA's ability to recover these costs.

B. Site Designation

Generally, sites that are included within the scope of the MOA will

be those types of sites that are often less-contaminated or that pose

lower risk to public health, welfare or the environment; these types of

sites are not typically addressed by EPA CERCLA cleanup actions. For

purposes of this guidance, EPA will designate these sites as Lower Risk

(or Tier II) sites. EPA's expectation for Lower Risk (Tier II) sites

covered by an EPA/State MOA concerning State voluntary cleanup programs

is that EPA cleanup actions should be necessary only under very limited

circumstances, and that the contact for cleanup of Lower Risk (or Tier

II) sites is the State.

EPA has developed a site designation and screening mechanism that

distinguishes Higher Risk (or Tier I) and Lower Risk (or Tier II) sites

(See Attachment). The MOA should explain that States or volunteering

parties will use this screening mechanism, which is attached, to

designate a site as Higher Risk (Tier I) or Lower Risk (Tier II). A

State may propose to EPA Headquarters an alternative screening process

or mechanism for designating sites as Higher Risk (or Tier I) or Lower

Risk (or Tier II). The State should demonstrate that the proposed

alternative screening mechanism achieves results consistent with the

results of the process described in the Attachment. If EPA Headquarters

approves the alternative site tiering process, the MOA should attach

the description of the alternative screening process. The MOA should

also

[[Page 47498]]

recognize that alternative method as a way to designate sites as Higher

Risk (or Tier I) or Lower Risk (or Tier II).

The MOA should state that documentation of the decision designating

a site as Higher Risk (or Tier I) or Lower Risk (or Tier II) should be

kept in the file maintained by the State voluntary cleanup program, and

be made available to EPA upon request. The MOA should also specify that

the State is responsible for the site designations. If EPA subsequently

determines that a site was improperly designated as Lower Risk (Tier

II), the provisions of section III. D. ``EPA CERCLA Action'' do not

apply to that site. The sites addressed through a State voluntary

cleanup program that do not have documentation establishing a site as

Lower Risk (Tier II), should not be eligible for inclusion within the

scope of an MOA concerning EPA CERCLA cleanup actions.

C. Applicability to Facilities subject to RCRA Requirements

This guidance is also applicable to CERCLA actions at sites subject

to RCRA requirements, subject to the restrictions in section III. A.,

above, and as discussed below. Generally, this guidance could apply to

two types of sites subject to RCRA: (1) sites at which there are only

generators of hazardous waste; and (2) hazardous waste treatment,

storage or disposal facilities (TSDFs).

Generators

Sites at which there are only generators of hazardous waste are

typically cleaned up by State cleanup programs (or, in some cases, the

Federal CERCLA program) and are within the scope of the MOA unless

otherwise excluded by the restrictions in Section III.A., above.

TSDFs

Hazardous waste treatment, storage or disposal facilities (TSDFs)

are typically cleaned up by EPA or authorized States under the RCRA

corrective action provisions (See, RCRA sections 3004(u) and (v) and

3008(h)). TSDFs or portions of TSDFs where corrective action has not

yet been initiated under an order or permit may be included within the

scope of the MOA on a case-by-case basis. At the Federal level, the

CERCLA program has already generally deferred cleanups of RCRA TSDFs,

including those RCRA TSDFs currently being addressed in authorized

States under order or permit, to the RCRA program (see, 60 FR 14641;

March 20, 1995).

Effect of RCRA Authorization

Under RCRA section 3006, EPA may authorize States to carry out the

RCRA program (including corrective action requirements), subject to EPA

oversight. In a State authorized to implement RCRA corrective action,

EPA expects the State to be the primary implementor of RCRA

requirements at all facilities subject to corrective action, including

facilities that have, have had, or should have had, RCRA interim

status. Authorized States may, at their discretion, allow cleanup of

TSDFs or portions of TSDFs under a State voluntary program. In an

authorized State, TSDFs or portions of TSDFs where corrective action

has not yet been initiated under an order or permit may be addressed by

the policy discussed in section III. D. of this guidance on a case-by-

case basis.

Effect of Cleanup Under a State Voluntary Program on RCRA Permitting

Requirements

In authorized and non-authorized States, a voluntary cleanup at a

TSDF does not avoid the requirements that TSDFs obtain RCRA permits and

that RCRA permits address corrective action. In cases where voluntary

cleanups occur prior to permit issuance, EPA or the authorized State,

at the time of permit issuance, must determine whether or not a

voluntary cleanup satisfied all corrective action requirements or

whether additional corrective action activities are needed (e.g., if

the voluntary cleanup addressed only a portion of the facility subject

to corrective action). Voluntary cleanups can substantially accelerate

the corrective action process by, for example, allowing it to proceed

before permit issuance or, where a permit has been issued, by allowing

more immediate remediation of certain areas which are not covered by

the permit, unless otherwise excluded by the restrictions in section

III.A., above.

D. EPA CERCLA Action

The Regions should state in the Memorandum of Agreement the

following:

For sites being investigated or cleaned up consistent with the

practices and procedures of a State voluntary cleanup program that

meets the criteria discussed in this guidance, EPA will not exercise

its cost recovery authority unless:

a. The Administrator determined that the release or threat of

release may present an imminent and substantial endangerment to public

health or welfare or the environment; or,

b. The State requests the Administrator to take action; or,

c. Conditions at the site, that were unknown to the State at the

time the response action plan was approved, are discovered, and such

conditions indicate, as determined by the Administrator or the State,

that the response action is not protective of human health or the

environment; or,

d. The cleanup of the site is no longer protective of human health

or the environment, as determined by the Administrator or the State,

because of a change or a proposed change in the use of the site.

Except as provided in (a) through (d) above, EPA does not generally

anticipate taking removal or remedial action at sites involved in State

Voluntary Cleanup Programs addressed by a signed EPA/State Superfund

Memorandum of Agreement.

E. EPA/State Coordination

The outcome of these MOAs is EPA acknowledgment of the adequacy of

a State voluntary cleanup program, and EPA's intention to rely on

States to be responsible for addressing sites included within the scope

of MOAs concerning these State voluntary cleanup programs. EPA and

States should be developing MOAs in the context of the new framework

for the State/EPA partnership, which EPA and State Environmental

Managers endorsed in July 1994. A key principle governing the EPA/State

relationship is that each State/EPA relationship must be based on an

understanding of--and consent for--a clear assignment of roles and

responsibilities. This principle envisions utilization of the

comparative advantages and inherent strengths that each party brings to

the relationship. Adherence to this principle should help avoid

duplication of effort, and maximize the number of sites cleaned up

through the efficient use of EPA and State resources.

Prior to signing an MOA concerning a State voluntary cleanup

program, the Region should review all relevant documents concerning the

voluntary cleanup program to determine if the State voluntary cleanup

program meets the six criteria discussed below. A Region may wish to

conduct a State visit to review the State voluntary cleanup program

prior to signing an MOA.

The MOAs concerning State voluntary cleanup programs should include

a provision that EPA will review the MOA upon significant changes to

the State voluntary cleanup program, and that the State will provide

EPA with prompt notice of changes to their laws, regulations, resource

levels, guidance,

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policies and practices governing such programs. The MOA should also

state that EPA will periodically conduct reviews of State Voluntary

Cleanup Programs where EPA has signed MOAs with States for the purpose

of assessing how effectively EPA and the States are meeting the goals

and expectations described in the MOA.

These reviews of signed MOAs should be conducted on a staggered

basis so that all MOAs signed in a Region are not up for review at the

same time. At a minimum, the initial review of an MOA should be

conducted three years after the date EPA signs an MOA; at a minimum,

subsequent reviews of MOAs should be conducted every five years

thereafter. While this guidance does not invalidate MOAs signed by EPA

and States before the effective date of this guidance, an EPA Region

should begin its staggered reviews by starting with those MOAs. Reviews

of existing voluntary cleanup MOAs should be conducted to assess the

consistency of State voluntary cleanup programs with this guidance.

When an interested party expresses concern to EPA about a specific

site covered under the MOA, EPA may contact the State, which would be

responsible for providing documentation to EPA that designates the site

as a Lower Risk (Tier II) site. EPA and the State should discuss the

party's concern as well as the status of the site under the State

voluntary cleanup program. If the public expresses significant concerns

to EPA about any aspect of the State voluntary cleanup program, EPA and

the State will discuss how the MOA is being implemented, and whether

the State's voluntary cleanup program continues to meet the

requirements set forth in this guidance.

Prior to EPA deciding to sign an MOA concerning State voluntary

cleanup programs, the Region will discuss with the State its views and

record on NPL listing, and will consider that information as a factor

in deciding whether to sign an MOA. EPA will include the State's views

and record on NPL listing as part of its periodic reviews of how

effectively the MOA is being implemented.

F. Criteria for a State Voluntary Cleanup Program

Before a Region and State sign an MOA that acknowledges the

adequacy of a State voluntary cleanup program, the Region should ensure

that the State voluntary cleanup program meets the criteria described

below. The MOA should make clear to any private party that recovery of

response costs under CERCLA will require that the cleanup action meet

the requirements outlined in the National Contingency Plan (See 40 CFR

300.700 et. seq.).

1. Community Involvement

Public involvement activities ensure that the public is both

informed of and, if interested, involved in planning for response

actions. Under voluntary cleanup programs, the State and/or the private

sector may provide the opportunity for community involvement

activities. General methods of providing the opportunity for meaningful

community involvement may include practices, policies, guidance, or

regulations on conducting community involvement on a site-by-site

basis.

The State voluntary cleanup program should provide opportunities

for meaningful community involvement that are responsive to the risk

posed by the site contamination and the level of public interest. While

States should be afforded discretion in how their program provides such

opportunities, State programs should, at a minimum, provide for

adequate notification of the proposed voluntary cleanup plan to

affected parties. The community involvement criterion can be

substantively met, on a site-by-site basis, by the State voluntary

cleanup program through any of the methods suggested below. At sites

where a significant segment of the community does not speak English as

a first language, there should be provisions for providing site

information in languages other than English.

a. Notifications about voluntary response actions to local

government officials and community groups;

b. Publication of legal notices about voluntary response actions in

city or community newspapers (or other media, such as radio, church

organizations and community newsletters) at key milestones in the

response action process;

c. Other forms of notification about voluntary response actions;

Where the public has been involved in site activities and

demonstrates an interest in participating in response action planning

and implementation, additional meaningful public involvement

opportunities may include:

d. Preparation of a public involvement plan that establishes

opportunities for public involvement. Such a plan may provide

background about the site, response actions already conducted, and the

history of public involvement at the site; identify the specific

opportunities for public participation in cleanup decisions that will

take place; and, describe activities that will be undertaken to address

and incorporate public concerns in the cleanup.

e. Involvement of the public in understanding the risk reduction

aspects of the voluntary cleanup.

f. The publication and distribution of site fact sheets.

g. Conduct of community interviews, including interviews through

notification and communication with community organization officials,

environmental justice groups, civic groups, environmental interest

organizations, and church organizations.

h. Numerous other methods to solicit public participation and

comment.

i. Public meetings or hearings, either formal or informal.

j. Local land use planning activities on current and/or future uses

of sites.

2. Protectiveness

A State voluntary cleanup program should ensure that voluntary

response actions are protective of human health, welfare, and the

environment. Reasonably anticipated future land uses should be

considered in establishing protective contaminant concentrations. All

voluntary response actions must comply with any Federal, State or local

laws that apply to that site. Ways to determine protectiveness may

include, but are not limited to:

a. Background contaminant concentrations;

b. Site specific risk assessments, based on U.S. EPA's Risk

Assessment Guidance for Superfund, part A and B, and associated policy

updates, e.g., soil screening guidance, or on State regulations and

guidance;

c. Contaminant-specific models such as the biokinetic uptake model

for lead;

d. Applicable and/or Relevant and Appropriate Requirements, such as

Maximum Contaminant Levels (MCLs) for groundwater;

e. Consistency with a human health risk range, as defined in 40 CFR

300.430(e)(2)(i)(A)(2) for known or suspected carcinogens, or a hazard

index for threshold contaminants, as defined in 40 CFR

300.430(e)(2)(i)(A)(1); or,

f. Risk-based corrective action assessment.

2A. Response selection. Response actions should be conducted cost-

effectively, consistent with projected future uses at the site. All

response actions must comply with any Federal, State and local laws

that apply to the site. Long-term reliability should also be a goal

when selecting response actions. Response actions may include one or

more of the following:

a. Treatment (active or passive) that eliminates or reduces the

toxicity,

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mobility, or volume of hazardous substances, pollutants, or

contaminants;

b. Containment of contaminated media to acceptable exposure levels;

c. Transport to off-site treatment;

d. Restricted access to and/or use of the site through

institutional controls that are enforceable over time.

3. Resources/Technical Assistance

The State should demonstrate that its voluntary cleanup program has

adequate resources, including financial, legal and technical, to ensure

that voluntary response actions are conducted in an appropriate and

timely manner, and that meaningful outreach efforts are made to the

affected community. The State agency should make available both

technical assistance, and streamlined procedures where appropriate, to

ensure expeditious voluntary response actions.

4. Certification of Response Action Completion

A State Voluntary cleanup program should provide adequate

mechanisms for the written approval of response action plans and a

certification or similar documentation indicating that the response

actions are complete. In situations where a State uses alternative

mechanisms to approve cleanup decisions, all approval determinations

will be considered the same as the State making the determinations, and

as such, the State will be viewed as responsible for such decisions.

5. Oversight Authorities

A State voluntary cleanup program should provide adequate oversight

to ensure that voluntary response actions, including site assessments/

characterizations, are conducted in such a manner to assure protection

of human health, welfare and the environment, as described above. For

sites with nonpermanent remedies, especially nonpermanent remedies

premised on the restricted use of the land, the State voluntary cleanup

program should meet this criterion by including a requirement that the

State program receives progress reports on site conditions, or by

reserving the State program's right to conduct site inspections. If the

State voluntary cleanup program does not require the State to monitor a

site after the final cleanup report is approved, then the State

voluntary cleanup program could meet this criterion by reserving the

State's authority to remove the cleanup certification under certain

circumstances, such as a change in the site's use, a failure of

institutional controls, or the discovery of additional contamination.

6. Enforcement Authorities

The State voluntary cleanup program should show the capability,

through enforcement or other state authorities, of ensuring completion

of response actions if the volunteering party(ies) conducting the

response action fail(s) or refuse(s) to complete the necessary response

activities, including operation and maintenance or long-term monitoring

activities.

G. Reporting Requirements

The Region and the State should negotiate the need for reporting

site names and the status of the sites by name to best suit the needs

of that Region and State. The MOA should state, however, that the State

agrees to maintain a list of site names (and locations) covered by the

MOA and to make such list available to EPA and the public upon request.

The State Agency should report, at a minimum, the following information

to the Region on an annual basis.

a. Number of sites in each stage of the State voluntary cleanup

program;

b. Number of sites entering the voluntary cleanup program the

previous year; and,

c. Number of sites having received State agency approvals of full

or partial completions in the previous year.

EPA should state in the MOA that it will conduct selective audits

of sites within the scope of the MOA for the purpose of assessing how

the site designation methodology attached to this guidance, or an

alternative site designation mechanism approved by EPA Headquarters, is

being implemented by either the State or the volunteering party.

Regions and States should discuss the status of CERCLIS 5

sites covered by the MOA at least semi-annually to ensure EPA/State

coordination on sites covered by the MOA. This is especially important

since EPA decides which sites are removed from CERCLIS.

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\5\ CERCLIS is the abbreviation of the CERCLA Information

System, EPA's comprehensive data base and management system.

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IV. Financial Assistance to States To Support Voluntary Cleanup Program

Activities

EPA recognizes that most State voluntary cleanup programs are

intended to be self-sustaining. Most of the voluntary programs with

active State oversight require the private party to pay an hourly

oversight charge to the State environmental agency in addition to all

cleanup costs. Some States require application fees that can be applied

against oversight costs.

However, EPA does recognize that States may need financial

assistance to help establish new State voluntary cleanup programs and

to help enhance existing State voluntary cleanup programs. To

accomplish this, the Region may enter into cooperative agreements with

the State to provide funding to the State for certain purposes.

The Region may provide Fund money to States for development and

enhancement of voluntary cleanup programs through core program

cooperative agreements. OSWER has developed guidance for use of core

program cooperative agreement funding of State voluntary cleanup

program infrastructure. (See May 1, 1997 memorandum from Timothy

Fields, Jr., Acting Assistant Administrator, OSWER, entitled ``Approach

for Regional Funding of State Voluntary Cleanup Programs.'') If the

Region intends to provide funds to the State for voluntary programs,

the Region should identify its resource needs for State voluntary

cleanup programs in its annual budget development process.

V. Technical Assistance to States to Support Voluntary Cleanup

Program Activities

EPA will also provide technical assistance to States to support

voluntary cleanups. EPA will share with States information contained in

publicly available national databases. EPA will share any lessons

learned or national expertise it has gained through the CERCLA program

with States who face similar assessment and cleanup problems at

voluntary cleanup sites.

Tier I/II Designation and Screening Process Summary

Introduction/Purpose

This document summarizes EPA's Tier I and Tier II definitions and

screening process for sites being addressed through voluntary cleanup

programs. Tier I sites are among those where EPA has historically taken

cleanup actions under the Federal Superfund program. Tier II sites are

generally representative of those where EPA has not historically taken

Federal Superfund cleanup actions. EPA intends that any party can use

the process outlined below to make Tier I/II designations.

Understanding the potential for Superfund involvement enables

stakeholders to make more informed property cleanup, transfer, and

redevelopment decisions.

[[Page 47501]]

Defining Tier I and Tier II Sites

Tier I sites are those that have greater potential to require long-

term or emergency cleanup work under the Federal Superfund program.

These are sites which have a release of a hazardous substance,

pollutant, or contaminant that has caused, or is likely to cause, human

exposure or contamination of a sensitive environment. These sites

typically involve contamination of drinking water, surface water, air,

or soils which has either caused, or is likely to cause, exposure to

nearby populations, or has contaminated, or is likely to contaminate,

sensitive environments (such as wetlands, national parks, and habitats

of endangered species, etc). Tier II sites are those that have less

potential to require long-term or emergency cleanup work under the

Federal Superfund program. This includes sites which: (1) Do not

qualify for response under Superfund (e.g., CERCLA petroleum exclusion

sites); (2) score below 28.5 based on EPA's Hazard Ranking System

(HRS), 55 FR 51532; (3) are being adequately addressed under other

Federal statutes, subject to the restrictions specified in Section III.

A. ``Scope and Applicability'' of the MOA/VCP guidance document; or (4)

otherwise do not meet the criteria given above for Tier I sites.

Screening Process

To conserve resources, EPA has employed a phased, progressively

more detailed screening process to identify Federal Superfund sites.

Key factors in making decisions about sites include whether a release

of hazardous substances has occurred or is likely to occur and

determining whether people or sensitive environments have been or are

likely to be impacted by the release. Only about 15 percent of the

sites screened by Superfund to date have required removal or remedial

actions--most are screened out. The Superfund screening process differs

from the private sector site evaluation approach which typically is

interested in what environmental liabilities and remediation costs are

associated with a site or property. Consequently, the private sector

assessments focus on collecting information on the property, not

offsite impacts. The Tier I/II screening process outlined below uses

common elements of both approaches and incorporates, when necessary,

the data needed for EPA to ensure human health and environmental issues

are addressed.

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EPA's HRS model can also be applied at any point in the assessment

process to assist parties in determining the likelihood of Federal

Superfund interest. Sites with an HRS score below 28.5 are considered

Tier II by the Agency and account for most of the sites assessed under

Superfund.

The steps involved in making a Tier I/II determination are further

described in the Screening Process section of the Tier I/II Designation

and Screening Process document.

[[Page 47502]]

Conclusion

EPA believes the screening process described above can by used by

any party to determine whether a site, in most cases, would be Tier I

or Tier II. It enables parties to make many Tier I or Tier II

designations based on information collected as part of the private due

diligence process. Additional detail can be found in the attachment

entitled ``Tier I/II Designation and Screening Process.''

Tier I/II Designation and Screening Process

Purpose

The purpose of this guidance is to provide definitions of Tier I

and Tier II sites within the context of MOAs covering State VCPs. The

guidance also describes a process that can be used by any party, e.g.,

site owners, State Agencies, etc., to decide whether a site should be

classified as Tier I or Tier II for the purpose of determining status

under the MOA. The overall goal of this guidance is to assist users in

reaching consistent decisions regarding Tier I/II designations.

Scope

EPA intends that this approach be used by states and/or private

parties, including, for example, site owners, to assist them in making

decisions regarding their status under a State VCP/MOA. EPA believes

that in most instances private parties can use the following

definitions and screening process to make accurate determinations on

whether sites are Tier I or Tier II. Although the volunteering party

may conduct the assessment on which the tiering decision is based, the

State is ultimately responsible for tiering decisions. If the EPA

subsequently determines that a site was improperly classified as ``Tier

II'', the provisions of section III. D. ``EPA CERCLA Actions'' of the

MOA/VCP guidance document will not apply.

The Agency anticipates that some of the sites addressed through

voluntary cleanup programs may be included in EPA's Comprehensive

Environmental Response, Compensation and Liability Information System

(CERCLIS) inventory. EPA removes sites from CERCLIS after assessment

and any necessary Superfund response and enforcement actions are

completed. Approximately 75 percent of the sites addressed under the

Federal Superfund program to date have been removed from the CERCLIS

inventory. With respect to voluntary cleanup programs, EPA will

continue to decide which sites are removed from CERCLIS based on the

same criteria that are applied to sites not covered under these

programs.

Background

The Federal Superfund program evaluates sites brought to the

Agency's attention to identify those sites posing the most serious

threats to human health and the environment. Generally, EPA employs a

multi-phase evaluation process to identify which sites are among the

highest priority for response, including whether they need removal

actions, and to determine what response actions are appropriate.

Results of the evaluations are used to determine whether involvement by

the Federal Superfund program, e.g., remedial actions at National

Priorities List (NPL) sites, performing time critical removal actions

by the Federal Superfund program, etc., is warranted.

These evaluations, including identifying hazardous substances,

exposure pathways, and receptors/targets, seek to identify sites that

have caused, or are likely to cause, human exposure or contamination of

sensitive environments. The definition of Tier I sites is directed

towards delineating these sites. Sites that do not meet these criteria,

which the Agency expects to be the majority of sites brought to the

Agency's attention, are defined as Tier II sites. Specifics of these

definitions are addressed below.

Tier I Definition

The Federal Superfund Program will generally classify a site as

Tier I if a release from that site has caused, or is likely to cause,

human exposure to the release or contamination of a sensitive

environment, and the release can be addressed under CERCLA authorities,

and cleanup of the release has not been generally deferred to another

Federal cleanup program. This includes, but is not limited to, sites

where:

Drinking water supplies have been, or are likely to

become, contaminated with a hazardous substance (as defined in HRS); or

Soils on or in close proximity to school, day care center,

or residential properties have been contaminated by a hazardous

substance three times above background levels; or

Toxic substances that bioaccumulate have been discharged

into surface waters; or

Air releases of hazardous substances have been identified

in a populated area; or

Sensitive environments have been contaminated; or

Releases would require immediate action from EPA (e.g.,

fire, explosions).

Note: Italicized terms are defined in the Tier I/II Screening

Mechanism Definitions section at the end of this document.

Tier II Definition

Tier II sites are those that would be unlikely to warrant Federal

remedial actions, i.e., those that do not meet the definition for Tier

I sites. Tier II sites would also include sites that score below 28.5,

based on the Hazard Ranking System (HRS), 55 FR 51532, and do not meet

any of the characteristics of Tier I sites identified above. The

majority of sites brought to the Agency's attention over the course of

the Superfund program have scored below 28.5 and are considered Tier

II.

Screening Process

The screening process below represents an approach to determine

whether a site is Tier I or Tier II. The process consists of multiple

steps in which each successive step involves more detailed information

about a site and its environs. Information needed at each step is used

to determine whether a site is Tier I, Tier II, or if further

evaluation is necessary to make a Tier I/II decision. EPA's HRS model

can be applied at any point in the process to assess a site. Those

sites which score below 28.5 at any step in the process and do not meet

any of the characteristics of Tier I sites identified above are defined

as Tier II. The HRS model is backed by a substantial body of guidance

available to assist users in making decisions consistent with those of

EPA. On the other hand, if the reviewer identifies conditions

consistent with any of the elements that make up a Tier I site, no

further investigation would be needed to classify the site as Tier I.

Given that each step in the process builds upon information collected

in previous stages, the process may be entered at any point based on

the amount of knowledge and data available regarding site conditions

and its environs.

The iterative nature of assessing sites by collecting more detailed

information and reaching conclusions in successive evaluation stages is

similar to both the public sector approach (e.g., preliminary

assessment followed by a site inspection if warranted) and the private

sector approach (e.g., phase I assessment based on ASTM Standard

Practice E 1527, followed by a phase II if warranted and requested).

Tier I/II status reflects site conditions at the time the

assessment data are collected and a decision is made. As such, a Tier

I/II decision could become invalid, if site conditions change, new

information is discovered, or site

[[Page 47503]]

characteristics change (e.g., a new residential development is built on

a site).

The five major steps in making a Tier I/II determination include:

(1) Exclusions; (2) Phase I; (3) Expanded Phase I; (4) Limited

Sampling; and (5) Extensive Sampling. Each of these steps is described

in detail below.

Exclusions. The first step in determining whether a site is Tier I

or Tier II involves determining whether the site is eligible for

cleanup under CERCLA authorities or if the site is being adequately

addressed under another federal statute such as the Resource,

Conservation and Recovery Act (RCRA). Sites that are ineligible for

CERCLA response or are being addressed under another federal statute

instead of CERCLA should receive a Tier II designation.

A. Statutory restrictions. Some substances are excluded under

CERCLA, and sites that contain only those substances are ineligible for

CERCLA response actions. Similarly, Section 104(a)3 of CERCLA lists

other limitations on CERCLA response. In general, a CERCLA response may

be taken at a site if there is a release or threat of a release of a

hazardous substance, pollutant or contaminant, or if the site poses an

imminent or substantial danger to public health, welfare, or the

environment).

Section 101(14) of CERCLA defines hazardous substances by

referencing substances specifically listed under other Federal laws. A

``hazardous substance'' is any element, compound, mixture, solution or

substance specifically designated as a ``hazardous substance'' or is

regulated under the Resource Conservation and Recovery Act, the Clean

Air Act, Clean Water Act, or Toxic Substances Control Act. Section

101(33) of CERCLA broadly defines the term ``pollutant or contaminant''

which could include any substance known or reasonably anticipated to be

harmful to human health or ecological health. Because no substances are

actually listed as pollutants or contaminants in CERCLA, the Agency

determines on a case-by-case basis which substances fall within the

definition.

There are specific statutory exclusions that could cause a site to

be ineligible for CERCLA response. For example, hazardous substances,

as defined under CERCLA, specifically exclude petroleum and natural

gas, and therefore CERCLA authority may not be used to respond to

releases of these substances unless they are specifically listed or

designated under CERCLA. The exclusion applies to petroleum, including

crude oil or any fraction thereof (if the fraction is not specifically

listed nor designated a hazardous substance by other listed federal

acts), natural gas, natural gas liquids, liquefied natural gas, and

synthetic gas usable for fuel. Sites are excluded if they contain only

excluded petroleum products. EPA expects that most releases from

petroleum underground storage tanks (USTs) at gasoline filling

stations, for example, would qualify for this exemption.

On the other hand, releases of petroleum products that are

contaminated with hazardous substances (i.e., used oil/waste oil

contaminated with metals or PCBs) may fall within CERCLA response

authorities, if the hazardous substances cannot be separated from the

petroleum, or if plumes of exempted substances are commingled with

plumes of non-exempted substances.

In addition, section 101(22) of CERCLA excludes a limited category

of radioactive materials from the statutory definition of ``release,''

making a site ineligible for CERCLA response. The excluded categories

of radioactive materials are:

1. Releases of source, by-product, or special nuclear material (not

including source material) subject to section 170 of the Atomic Energy

Act; 6 and

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\6\ Under this act, ``source'' means uranium or thorium, or any

combination of the two, in any physical or chemical form, ``by-

product'' means any radioactive material that was made radioactive

by exposure to radiation from the process of using or producing

special nuclear material, and ``special nuclear material'' is

plutonium, uranium-233, enriched uranium-233 or--235, or any

material that the NRC determines to be special nuclear material not

including source material.

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2. Any release of source, by-product, or special nuclear material

from any processing site specifically designated under the Uranium Mill

Tailings Radiation Control Act of 1978.

Parties should consult with State and/or Federal contacts and

consult appropriate case law to determine whether the site is excluded

from CERCLA consideration due to statutory restrictions.

B. Other federal statutes. In addition to statutory restrictions,

sites being adequately addressed under other federal statutes, such as

RCRA, may also qualify for a Tier II designation, but refer to Section

III. A. ``Scope and Applicability'' of the MOA/VCP guidance document to

determine whether a specific site is eligible for inclusion under the

MOA/VCP. RCRA is EPA's other central authority for cleaning up releases

of hazardous substances, and has roughly parallel procedures to CERCLA

in responding to releases of hazardous substances. The Agency has

adopted a policy to use RCRA Subtitle C (hazardous waste) authority to

respond to sites that can be addressed under RCRA Subtitle C corrective

action authority (see 54 FR 41000, October 4, 1989).

Types of sites covered under the policy include hazardous waste

treatment, storage and disposal facilities (TSDFs) that qualify under

EPA's National Priorities List/RCRA deferral policy (see 51 FR 21057,

53 FR 23980, and 54 FR 41004). Parties should consult with State and

Federal contacts to determine whether a site is being addressed under

another federal statute, and therefore, whether a Tier II designation

is appropriate. Again, parties must still refer to Section III. A.

``Scope and Applicability'' of the MOA/VCP guidance document to

determine whether a specific site is eligible for inclusion under the

MOA/VCP.

Parties should consult with State and/or Federal contacts and

consult appropriate case law to answer the following questions:

Question 1A: Is the site eligible for response under CERCLA

authorities?

If NO, the site should be classified as Tier II and no further work

under this process is necessary;

If YES, refer to Question 1B:

Question 1B: Is the EPA or the State addressing the site under

another federal statute instead of CERCLA?

If NO, proceed to the Phase I step (or other appropriate step

depending on site information available);

If YES, the site should be classified as Tier II and no further

work under this process is necessary.

Phase I

The Phase I step within this process is quite similar to the

methods prescribed by ASTM Standard Practice E 1527, although it is

limited to hazardous substances as defined under CERCLA. The primary

purpose of the Phase I step is to gather readily available information

about a site to identify the presence or likely presence of an existing

or past release of a hazardous substance into the ground (i.e., soil),

ground water, surface water, or air. This step determines whether there

is evidence or an indication that hazardous substances, pollutants, or

contaminants were ever handled or disposed at the site either currently

or in the past.

The Phase I step in this process consists of a review of records

and related environmental reports pertaining to the site and a site

visit to observe site conditions. Types of information collected during

this step include a

[[Page 47504]]

general site description, current and past site use (e.g., nature and

type of industrial use), topography, and waste characteristics,

including an estimation of the type and quantity of hazardous

substances at the site. Visual observations should consider stressed

vegetation, discolored soils, oily ponds, and similar signs of

contamination. No sampling is involved in this step. Geologic,

hydrogeologic, and hydrologic data will prove useful along with

topographic maps to determine whether migration of hazardous substances

is likely. Data collected should help identify the potential

distribution and mobility of hazardous substances in soil, ground

water, surface water, and air.

Observations should also identify any site conditions warranting

immediate or emergency actions. Examples of these include the threat of

fire and/or explosion from unstable or reactive hazardous materials,

the threat of direct contact with a hazardous substance, the threat of

a continuing release of a hazardous substance, and the threat of

contaminating surface waters or drinking water supplies.

The collection and review of readily available information at this

step should be sufficient to answer the following question:

Question 2: Is it reasonable to expect that hazardous substances

are present at the site?

If NO, the site should be classified as Tier II and no further work

under this process is necessary;

If YES, proceed to the Expanded Phase I step (or other appropriate

step depending on site information available).

Note: The site should be classified as Tier I if information

indicates a release of a hazardous substance, pollutant, or

contaminant has caused, or is likely to cause, human exposure or

contamination of a sensitive environment, or if the site otherwise

exhibits conditions such as those described under the Tier I

definition above.

Expanded Phase I

If the Phase I indicates a reasonable expectation that hazardous

substances are present at the site, the next step in this process

involves gathering environs data to determine what could be impacted by

a release from the site. Therefore, the purpose of the Expanded Phase I

step is to identify and verify the existence and locations of nearby

people (or pathways of human exposure, e.g., water intakes or wells)

and sensitive environments that might be threatened by a release from

the site.

Examples of data collected at this stage include nearby

residential, worker, and student population estimates, nearby

municipal, private, and other drinking water supplies, drinking water

wells and intakes, fisheries (including sport and subsistence fishing),

and sensitive environments such as wetlands, national parks, wildlife

refuges, and habitats of threatened or endangered species. This

information is collected to determine whether a release of hazardous

substances at the site could lead to human exposure or contamination of

sensitive environments.

Data collected under the Expanded Phase I step should be sufficient

to answer the following question:

Question 3: Could nearby populations or sensitive environments be

at risk from the site?

If NO, the site should be classified as Tier II and no further work

under this process is necessary;

If YES, proceed to the Limited Sampling step (or other appropriate

step depending on site information available).

Note: The site should be classified as Tier I if information

indicates a release of a hazardous substance, pollutant, or

contaminant has caused, or is likely to cause, human exposure or

contamination of a sensitive environment, or if the site otherwise

exhibits conditions such as those described under the Tier I

definition above.

Limited Sampling

If the Phase I investigation indicates a reasonable expectation

that hazardous substances have been present at the site and the

Expanded Phase I indicates that human populations or sensitive

environments may be threatened by a release from the site, sampling

should be conducted to confirm the presence of hazardous substances on

the site. The purpose of the Limited Sampling step is to collect and

analyze waste and environmental samples, using field screening and

analytical techniques where appropriate, to determine the hazardous

substances present at a site and whether they are being released to the

environment.

The Limited Sampling step is not intended to be an exhaustive

assessment of environmental conditions at a site. Rather investigators

should obtain enough information to confirm whether hazardous

substances are present. As in the Phase I step, investigations should

identify site conditions posing immediate health or environmental

threats which require emergency response.

Site sampling typically requires developing a work plan, along with

sampling and health and safety plans. Sampling and analysis should

comply with a screening level quality of data following adequate

quality assurance and quality control (QA/QC) procedures (40 CFR

31.45). The sampling plan should employ sound, scientific and

professional judgment in identifying sampling locations.

The sampling data must be sufficient to answer the following

question:

Question 4: Does site specific sampling confirm the presence of

hazardous substances at the site?

If NO, the site should be classified as Tier II and no further work

under this process is necessary;

If YES, proceed to the Extended Sampling step (or other appropriate

step depending on site information available).

Note: The site should be classified as Tier I if information

indicates a release of a hazardous substance, pollutant, or

contaminant has caused, or is likely to cause, human exposure or

contamination of a sensitive environment, or if the site otherwise

exhibits conditions such as those described under the Tier I

definition above.

Extensive Sampling

If the Limited Sampling step confirms the presence of hazardous

substances at the site, more extensive sampling may be required to

determine whether the site is Tier I or Tier II. The purpose of the

Extensive Sampling step is to further evaluate the degree to which a

site presents a threat to human health or welfare or the environment by

collecting and analyzing waste and environmental media samples. This

step is implemented to document releases and exposure/contamination on-

site and off-site. Off-site sampling is needed to provide background

samples, and where appropriate, identify human exposure or

environmental contamination.

Background samples are needed to determine whether contamination at

the site is at least three times higher than background levels.

Sampling conducted under this step should comply with a definitive data

level of QA/QC (40 CFR 31.45). The detection limits used in the

analysis of both the background and site-related contamination samples

should be quantitatively consistent with sample quantitation limits as

specified under the Superfund Contract Laboratory Program.

Quantification of on-site and off-site threats should be sufficient to

answer the following:

Question 5: Do on-site and off-site sampling data show exposure, or

likely exposure, of nearby populations, and/or contamination, or likely

contamination of sensitive environments at a minimum of three times

above background levels or above EPA standard sample quantification

limits?

[[Page 47505]]

If NO, the site should be classified as Tier II and no further work

under this process is necessary;

If YES, the site should be classified as Tier I.

Note: The site should also be classified as Tier I if the site

otherwise exhibits conditions such as those described under the Tier

I definition above.

Request for Comments

The Agency is requesting comment on the criteria and screening

process. EPA would like to receive comments on the screening mechanism,

both how it works in general (for example, feasibility and ease of

implementation), and specific suggestions for how the process could be

improved. In particular, EPA would appreciate feedback and comment on

the following questions:

1. What type and amount of information is needed each stage in the

decision process to reach a Tier I or Tier II decision?

1a. Would collecting the suggested information allow a party to

move forward through the decision-making process efficiently and

expeditiously?

1b. What can be done with the process to guard against inaccurate

assessments?

1c. How well will this process work within established State

programs?

2. Are the screening steps in the best logical sequence?

2a. At what point it is useful to have information on exposure

targets (i.e., nearby populations and sensitive environments).

2b. Would it be more useful to have information about exposed/

potentially exposed targets before or after limited sampling is

performed?

2c. When would information on target access to contamination be

collected?

3. If there are nearby populations or sensitive environments, how

could EPA ensure that private parties would evaluate them to account

for changes in land use in the near or long-term?

4. What tools are currently available to the public that would

allow them to collect the requested information?

4a. How would these tools work to support a party's decision from a

cost effectiveness and timeliness standpoint.

Tier I/II Screening Mechanism Definitions

The following definitions support terms identified in the Tier I,

Tier II, and Process sections above:

Background: the level of a hazardous substance that provides a

defensible reference point that can be used to evaluate whether or not

a release from the site has occurred. The background level should

reflect the concentration of the hazardous substance in the medium of

concern for the environmental setting on or near a site. Background

level does not necessarily represent pre-release conditions, nor

conditions in the absence of influence from the source(s) at the site.

A background level may or may not be less than the detection limit

(DL), but if it is greater than the DL, it should account for

variability in local concentrations. A background level need not be

established by chemical analysis. Hazard Ranking System Guidance

Manual, Interim Final, pp. 55 and 57.

Bioaccumulation: the tendency of a hazardous substance to be taken

up and accumulated in the tissue of aquatic organisms, either from

water directly or through consumption of food containing the hazardous

substance. Hazard Ranking System Guidance Manual, Interim Final, p.

294; Rand, Gary M., and Sam R. Petrocelli, Fundamentals of Aquatic

Toxicology, 1985, p. 652.

Definitive Data: data that are documented as appropriate for

rigorous uses that require both hazardous substance identification and

concentration. Definitive data are often used to quantify the types and

extent of releases of hazardous substances. Guidance for Performing

Site Inspections Under CERCLA, Interim Final, p. 99; Guidance for Data

Useability in Site Assessment, Draft, pp. 13 and 14.

Drinking Water Supply: any source of water (surface or ground) that

is currently used or could be used to supply potable water. Guidance

for Performing Site Inspections Under CERCLA, Interim Final, p.118;

Hazard Ranking System Guidance Manual, Interim Final, p. 116.

Facility: any building, structure, installation, equipment, pipe or

pipeline (including any pipe into a sewer or publicly owned treatment

works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage

container, motor vehicle, falling stock, or aircraft, or any site or

area where a hazardous substance has been deposited, stored, disposed

of, or placed, or otherwise come to be located; but does not include

any consumer product in consumer use or any vessel. CERCLA section

101(9).

Ground Water: water in a saturated zone or stratum beneath the

surface of land or water. CERCLA section 101(12).

Hazard Ranking System: scoring system used by EPA's Superfund

program to assess the relative threat between sites associated with

actual or potential releases of hazardous substances. It is a screening

tool for determining whether a site is to be included on the National

Priorities List. Hazard Ranking System Guidance Manual, Interim Final,

p.1.

Hazardous Substance: CERCLA hazardous substances, pollutants, and

contaminants as defined in CERCLA section 101(14) and 101(33), except

where otherwise specifically noted in the HRS. 40 CFR 300, Appendix A

(Hazard Ranking System), Section 1.0.

Human Exposure: any exposure of humans to a release of one or more

hazardous substances via inhalation, ingestion, or dermal contact.

Amdur, Mary O., John Doull, and Curtis D. Klaassen, Toxicology, The

Basic Science of Poisons, Fourth Edition, 1991, p. 14; Hazard Ranking

System Guidance Manual, Interim Final, pp. 153, 259, 293, 317, 363, and

411.

Nearby Populations: regularly present residents, workers, and

students and sensitive environments located on or within 1 mile from

the boundaries of a hazardous substance release. 40 CFR 300, Appendix A

(Hazard Ranking System), section 5.2.

Populated Area: any area occupied by a regularly present resident,

student, or worker and/or sensitive environment. Populated areas do not

include transient populations such as business patrons or travelers

passing through the area. Hazard Ranking System Guidance Manual,

Interim Final, p. 412; 40 CFR 300, Appendix A (Hazard Ranking System),

section 3.3.2.

Release: any spilling, leaking, pumping, pouring, emitting,

emptying, discharging, injecting, escaping, leaching, dumping or

disposing into the environment (including the abandonment or

discharging of barrels, containers, and other closed receptacles

containing any hazardous substance or pollutant or contaminant). CERCLA

section 101(22).

Screening Data: data that are appropriate for applications that

only require determination of gross contamination areas and/or for site

characterization decisions that do not require quantitative data.

Screening data are often used to specify which areas to sample to

collect definitive data. Guidance for Performing Site Inspections Under

CERCLA, Interim Final, pp. 99 and 100; Guidance for Data Useability in

Site Assessment, Draft, p. 15.

Sensitive Environments: consist of environmental receptors

recognized in 40 CFR 300, Appendix A (Hazard Ranking System), Table 4-

23, Table 5-5, and wetlands as defined by 40 CFR 230.3.

Site: area(s) where a hazardous substance has been deposited,

stored, disposed, or placed, or has otherwise

[[Page 47506]]

come to be located. Such areas may include multiple sources and may

include the area between sources 40 CFR 300, Appendix A (Hazard Ranking

System), Section 1.0. The site is neither equal to nor confined by the

boundaries of any specific property that may give the site its name. 60

FR 190, p. 51391.

Surface Waters: water present at the earth's surface. Surface water

includes rivers, lakes, oceans, ocean-like water bodies, wetlands, and

coastal tidal waters, which include embayments, harbors, sounds,

estuaries, back bays, lagoons, wetlands, etc. seaward from mouths of

rivers and landward from the baseline of the Territorial Sea. 40 CFR

300, Appendix A (Hazard Ranking System), section 4.0.2.

Wetlands: a type of sensitive environment defined in 40 CFR 230.3

as ``* * * those areas that are inundated or saturated by surface or

ground water at a frequency and duration sufficient to support, and

under normal circumstances do support, a prevalence of vegetation

typically adapted for life in saturated soil conditions.'' Wetlands can

be natural or man-made. Wetlands generally include swamps, marshes,

bogs, and similar areas. Hazard Ranking System Guidance Manual, Interim

Final, p. A-20.

[FR Doc. 97-23831 Filed 9-8-97; 8:45 am]

BILLING CODE 6560-50-P