EPA Policy Towards Privately-Owned Formerly Used Defense Sites
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
March 21, 2002 MEMORANDUM
Over the past several years, the U.S. Environmental Protection Agency (EPA) has increased its focus on environmental investigations and cleanups of privately-owned Formerly Used Defense Sites (FUDS). This has occurred due to requests from States, Tribes, the general public and congressional staff and members. As a result, EPA has re-evaluated its approach to addressing privately-owned FUDS, particularly those not included on the Superfund National Priorities List (NPL), and is issuing this policy to the Regions in order to clarify the Agency's role at these sites. For purposes of the attached policy, privately-owned FUDS are defined as those FUDS not currently owned by the Federal government. This includes FUDS owned by the States, Tribes, cities, and other governmental entities, as well as individuals, corporations, etc. The distinction is required because of differences in both statute, Executive Orders, and regulations relative to Federally-owned and non-Federally owned contaminated sites. The Superfund Amendments and Reauthorization Act of 1986 (SARA) amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and also created, through §211, the Defense Environmental Restoration Program (DERP). DERP assigns the Secretary of Defense the responsibility to carry out response actions for environmental contamination at FUDS. Furthermore, EPA fully recognizes and supports the oversight and response role that many State and Tribal environmental regulatory agencies have been performing at FUDS and expects that role to continue. EPA believes that a better coordinated effort among all parties, as is discussed in this policy, will improve both the effectiveness of cleanup at FUDS and the public confidence in the actions taken at these sites. The Offices of Solid Waste and Emergency Response and Enforcement and Compliance Assurance would like to express our appreciation to the EPA Formerly Used Defense Sites Workgroup that has developed this policy over the last three years. We also would like to express our appreciation to the Department of Defense, States, Tribes, and members of the public that have reviewed and commented on previous versions of this policy. While we have not been able to incorporate each and every comment into the policy, it is much improved by your thoughtful comments. Questions about the policy should be directed to the Federal Facilities Restoration and Reuse Office at (202) 260-9924, the Federal Facilities Enforcement Office at (202) 564-2510, the Office of Site Remediation and Enforcement at (202) 564 -5110, or the Office of Emergency and Remedial Response at (703) 603-8960. Attachment
I. Introduction II. Applicability III. Implementation A. How are EPA, States, and Tribes expected to coordinate? IV. Defense Environmental Restoration Program Consultation
V. Enforcement VI. Disclaimer I. What is the scope of this policy? This policy articulates how EPA expects to undertake its obligations and responsibilities to address privately-owned, non-NPL FUDS. (All subsequent references in this policy to "FUDS," except as noted, refer to privately-owned formerly used defense sites.) This policy brings together in a single place, existing programmatic policies and approaches specifically relevant to FUDS; consequently this policy does not establish any new requirements or responsibilities for EPA or other stakeholders. It clarifies the applicability of existing policies and guidance and does not establish a new regulatory role for EPA. Specifically, this policy discusses EPA's role in the site assessment of FUDS, EPA's role in overseeing and implementing response actions at FUDS, and the enforcement alternatives available to EPA for ensuring that known or threatened releases of hazardous substances, pollutants or contaminants at FUDS are addressed in accordance with CERCLA or other applicable authorities. To facilitate the Department of Defense's (DoD's) implementation of DERP's requirement to implement it "in consultation with" EPA (see 10 U.S.C. §2701-§2707), this policy outlines a framework for coordinating with DoD's executing agent for the FUDS program, the Department of the Army. Within the Army, the U.S. Army Corps of Engineers (USACE) is the executing agent for the FUDS program. Finally, this policy is intended to promote consistency across the EPA Regions by providing guidance for addressing these sites in a more systematic manner. EPA recognizes that State, Tribal or other environmental agencies oversee many non- NPL FUDS 1. It is EPA's intention under this policy to be consistent with existing deferral and coordination policies2 and to minimize any potential duplication of effort on the part of the States, Tribes, the DoD/USACE, or other responsible parties. In issuing this policy, EPA acknowledges the States' roles at non-NPL FUDS and is not attempting to change how EPA works with the States in addressing private sites. EPA expects that oversight of most non-NPL FUDS will continue to be provided primarily by the States and does not call into question existing State/USACE agreements. For a variety of reasons, however, there may be sites at which EPA will provide significant regulatory oversight of the USACE or may conduct environmental response actions at FUDS, such as when a State, Tribe, or community requests EPA assistance, or when EPA otherwise determines that site-specific conditions warrant such action. This policy encourages cooperative efforts among the involved regulatory agencies to establish the most efficient approach for ensuring that response actions are protective of human health and the environment. For purposes of this policy and consistent with DERP, 10 U.S.C. §2701(c)(I)(B), FUDS are defined as sites which were previously under the jurisdiction of DoD and owned by, leased to, or otherwise possessed by the United States at the time of actions leading to contamination by hazardous substances. EPA recognizes that DERP assigns DoD the responsibility to conduct response actions at FUDS subject to and consistent with CERCLA at FUDS.3 DoD focuses its efforts under DERP only on releases associated with DoD activities. EPA, however, has broader CERCLA response authorities at privately-owned FUDS and should ensure that known or threatened releases of hazardous substances, pollutants or contaminants, regardless of source, are responded to in accordance with CERCLA. EPA may perform response activities at privately-owned sites, including FUDS, as authorized in CERCLA §1044 and Executive Order 12580. Furthermore, while this policy focuses on authorities available to EPA under CERCLA, nothing in this policy should be construed as limiting EPA's or a State's authorities under other applicable statutes, such as the Resource Conservation and Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), the Clean Water Act (CWA), or the Safe Drinking Water Act (SDWA). II. What types of sites and situations fall under this policy? This policy addresses EPA's role at privately-owned, non-NPL FUDS where there has been a release or threat of a release of a hazardous substance, pollutant or contaminant to the environment. This policy also outlines EPA's role in the site assessment of these sites, as well as the oversight and implementation of response actions at these sites. Federally-owned FUDS which meet the criteria set forth in CERCLA §120(c) should be included on the Federal Agency Hazardous Waste Compliance Docket and, where appropriate, evaluated for placement on the NPL in accordance with CERCLA §120(d) and existing EPA policies regarding site assessment and NPL listing. III. How is this policy to be implemented? A. How are EPA, States, and Tribes expected to coordinate?
B. How are sites to be assessed? EPA's authorities to conduct site assessment activities, including Preliminary Assessments (PAs) and Site Inspections (SIs), are discussed in CERCLA (Sections 105 and 116), the NCP (Sections 300.410, 300.420, and 300.425), and applicable EPA guidance.5 In performing CERCLA site assessments, EPA identifies and prioritizes sites, including FUDS, where a release or a threat of release of a hazardous substance, pollutant or contaminant may pose an unacceptable threat to human health or the environment. Regions should integrate FUDS into existing site assessment processes. Although the site assessment processes described herein focus primarily on CERCLA processes and terminology, some Regions, States, or Tribes may choose to conduct assessments under other authorities, such as RCRA, TSCA, CWA, or SDWA, or comparable State or Tribal authorities where jurisdiction under those authorities exists.
C. What about sites requiring EPA oversight or response? Following evaluation, those FUDS that are appropriate for inclusion on the NPL should be proposed for listing, consistent with applicable regulations and EPA policies. For other FUDS, the Regions may determine that while a site does not merit inclusion on the NPL, risks posed by releases or threatened releases of hazardous substances, pollutants or contaminants may warrant a response action under CERCLA or other authorities. As previously stated, EPA will assess and respond to these non-NPL FUDS in the same manner as other privately-owned CERCLA sites. In addition, EPA plans to utilize the same enforcement approach for FUDS as is applied to privately-owned CERCLA sites. It is EPA's expectation that, for most non-NPL FUDS, the States and Tribes will continue to provide the primary oversight of USACE response actions. However, for FUDS where EPA plans to provide primary oversight under CERCLA at all or part of a FUDS, EPA should continue to follow its practice of attempting to reach with USACE and other appropriate parties an agreement that provides for performance of work and reimbursement of oversight costs before attempting other alternatives. Where time sensitivity requires an immediate response, EPA recognizes the difficulty of negotiating such agreements prior to initiation of the response. If EPA is unable to reach agreement with USACE regarding either the need for coordinated action or the establishment of acceptable schedules for implementing actions, the Regions, in consultation with the States and Tribes, should consider the full range of enforcement authorities to compel cleanup based on the nature of the contamination and other site-specific conditions (see Section VI). In appropriate situations, EPA may implement CERCLA response actions at privately-owned FUDS (including remedial actions at FUDS listed on the NPL) to address releases and threats of releases of hazardous substances and proceed with cost recovery actions. IV. What are EPA's expectations relative to Defense Environmental Restoration Program consultation? A. What are EPA's site-specific consultation expectations? EPA's expectations of USACE for site-specific consultation and review include, but are not limited to: Providing EPA and the State/Tribe with site management plans, including schedule milestones; Providing EPA and the State/Tribe with timely information relative to FUDS Inventory Project Reports (INPRs), categorical exclusions, NOFA/NDAI determinations, and identification of non-DoD potentially responsible parties (PRPs) at FUDS. If parties in addition to DoD may be liable for releases of hazardous substances, pollutants or contaminants at FUDS, EPA expects DoD to notify EPA and provide all relevant information in a usable format and in a timely manner; Providing EPA and the State/Tribe with reasonable opportunities for meaningful regulatory review of and comment on major project documents, including, but not limited to, historical property use records, work plans, sampling and analysis plans, investigatory/study reports, remedial investigation/feasibility study (RI/FS) reports, engineering evaluations/cost analyses (EE/CAs), decision documents, and remedial design/remedial action (RD/RA) plans; and, Providing modified project documents in response to comments from EPA and State/Tribe. EPA also expects DoD to provide written responses to comments along with modified project documents. In order to facilitate an efficient, expeditious response action, and to avoid an unnecessary duplication of effort and expenditure of resources by the United States government, in those cases where USACE has become aware of significant contamination from non-DoD sources, USACE should supply all pertinent information that it finds concerning the contamination, and its source or sources, to the Region, the State, and to any potentially affected Tribes. When a FUDS response action is being conducted by USACE under an enforceable agreement with either EPA or the State/Tribe, EPA's expectation is that DERP consultation requirements will be satisfied, as provided in the agreement. Regions, with input from the States and Tribes, are encouraged to negotiate consent agreements with the DoD components or USACE, where appropriate, to better define consultation details for specific FUDS. However, to ensure that CERCLA and NCP criteria are satisfied, EPA should explore its enforcement alternatives, as outlined in Section VI, when the USACE fails to meet EPA's expectations for consultation under DERP. B. What are EPA's expectations relative to programmatic consultation? In addition to receiving notification on potential FUD sites, and an opportunity to provide timely review and comment on proposed response actions, per 10 U.S.C. Section 27057, EPA, States and Tribes expect the opportunity for meaningful input at the programmatic level in the planning of response actions at FUDS by USACE.8 In keeping with the principles agreed upon in the Federal Facilities Environmental Restoration Dialogue Committee (FFERDC) report (April 1996), and as required by the consultation provision in DERP, EPA expects annually to provide input to USACE on FUDS program priorities. In some instances, processes allowing for meaningful regulatory input into non-NPL FUDS program planning may already be in place between the State and DoD through the Defense/State Memorandum of Agreement (DSMOA) program or other agreements. In those cases, the Region should consult with the State and USACE to define EPA's role in the planning processes. In coordinated efforts with the States and Tribes, the Regions should actively engage the USACE Districts, Divisions, and Headquarters offices in planning project requirements at the site-specific level and subsequently assist USACE in integrating these individual site-specific requirements into a comprehensive funding plan, or work plan, for all FUDS within a Region. Additionally, EPA expects active and timely communication from USACE with respect to relative risk evaluations, project prioritization and eligibility, and USACE's designation of PRP sites and PRP investigations. EPA should provide to USACE, and share with the States/Tribes, written comments expressing any concerns with FUDS program planning/funding documents. EPA expects a written response from USACE substantively addressing those comments prior to issuance of a final FUDS funding plan. The goal of this effort is to develop consensus among the responsible agencies in identifying program funding needs and project priorities. V. What are EPA's expectations on enforcement at FUDS? This policy contemplates that most response actions and cleanup activities at privately-owned, non-NPL FUDS will be conducted under DERP and CERCLA. Similarly, and as outlined in the preceding sections, EPA expects that the process to be followed for identifying FUDS for which a response is necessary, determining the nature of the response, the level of and need for oversight, etc., will be consistent with these authorities, including enforcement. However, EPA's enforcement authority at non-NPL FUDS is not limited solely to CERCLA; accordingly, where necessary and appropriate, and in consideration of relevant State and Tribal issues, EPA will make use of the full range of available tools to compel response actions at privately-owned FUDS. When EPA determines that an enforcement response is necessary, EPA should focus on negotiating orders to conduct work with the parties responsible for releases of hazardous substances, pollutants or contaminants, including DoD, consistent with existing enforcement and cleanup policies. To facilitate cleanup by non-DoD responsible parties, and consistent with enforcement priorities, Regions should also initiate PRP searches at FUDS early in the CERCLA process where parties in addition to DoD may be liable for releases of hazardous substances, pollutants or contaminants. In addition, Regions may issue unilateral orders to compel cleanup by any or all of the responsible parties under an appropriate enforcement authority, including, but not limited to, CERCLA, RCRA, or SDWA, where EPA determines that a site may present an imminent and substantial endangerment. Cleanup orders should include schedules for response action(s) that EPA determines to be needed, based on the site-specific situation. In appropriate situations, EPA may implement CERCLA response actions at privately-owned FUDS (including remedial actions at FUDS listed on the NPL) to address releases and threats of releases of hazardous substances, pollutants or contaminants, and proceed with cost recovery actions. CERCLA §106, 42 U.S.C. §9606, authorizes issuance of Administrative Orders when there may be an imminent and substantial endangerment to public health, welfare, or the environment because of an actual or threatened release of a hazardous substance. Section 4(e) of Executive Order 12580 requires that the Attorney General concur on CERCLA §106 orders issued against Federal agencies. Before the Attorney General's concurrence is sought, Regions should consult with the appropriate enforcement office at EPA Headquarters. In addition to CERCLA, the Regions should consider the applicability of other enforcement authorities that can be used to compel investigation and/or cleanup by Federal agencies or others with liability for releases at FUDS.9 For example, petroleum may be covered by a RCRA order, but excluded under CERCLA. Further, §7003 of RCRA, 42 U.S.C. §6973, provides EPA with a broad enforcement tool that can be used to address situations where the handling, storage, treatment, transportation, or disposal of any solid or hazardous waste may present an imminent and substantial endangerment to health or the environment.10 EPA may issue an Administrative Order to Federal agencies that have contributed or are contributing to such activities to require the agency to refrain from those activities or take any other necessary action. Section 1431 of the SDWA, 42 U.S.C. §300i, provides EPA broad authority to issue Administrative Orders to a Federal agency when EPA receives information that a contaminant is present or likely to enter a public water system or underground source of drinking water, and may present an imminent and substantial endangerment to human health. Enforcement cases against Federal agencies often present issues of national significance. Consistent with EPA Office of Enforcement and Compliance Assurance (OECA) delegations, Regions should consult with the appropriate enforcement office at EPA Headquartersll before issuing administrative orders to Federal agencies. VI. DISCLAIMER This policy is intended for use by EPA personnel in addressing privately-owned FUDs. The statutory provisions and EPA regulations described in this document contain legally binding requirements. This document is not a regulation itself, nor does not it change or substitute for those provisions and regulations. Thus, it does not impose legally binding requirements on EPA, States, or the regulated community. This policy does not confer legal rights or impose legal obligations upon any member of the public. The general policy provided here may not apply to a particular situation based upon the circumstances. EPA and other decision makers retain the discretion to adopt approaches on a case-by-case basis that differ from those described in this guidance where appropriate. |