OFFICE OF INSPECTOR GENERAL 

Catalyst for Improving the Environment 

 Evaluation Report 

EPA Needs to Take More Action in 

Implementing Alternative Approaches 

to Superfund Cleanups 

 Report No. 2007-P-00026 

 June 6, 2007 
Report Contributors: Carolyn Copper 

Tina Lovingood 

 Barry Parker

 Katherine Beam

 Kalpana Ramakrishnan 

Abbreviations 

CERCLIS Comprehensive Environmental Response, Compensation, and Liability 

Information System, also known as the “Superfund Information System” 

EPA U.S. Environmental Protection Agency 

GPRA Government Performance and Results Act 

HRS Hazard Ranking System 

NACEPT National Advisory Council for Environmental Policy and Technology 

NAM National Association of Manufacturers 

NPL National Priorities List 

NRD Natural Resources Damages 

OCPL Office of Congressional and Public Liaison 

OECA Office of Enforcement and Compliance Assurance 

OGC Office of General Counsel 

OIG Office of Inspector General 

OMB Office of Management and Budget 

OPE Office of Program Evaluation 

OSRE Office of Site Remediation Enforcement 

OSRTI Office of Superfund Remediation and Technology Innovation 

OSWER Office of Solid Waste and Emergency Response 

PRP Potentially Responsible Party 

RSD Regional Support Division 

SA Superfund Alternative 

SAS Superfund Alternative Sites 

SPIM Superfund Program Implementation Manual 

SSP Superfund Settlements Project 

TAP Technical Assistance Plan 

Cover photo: The Tremont City Landfill is located near Springfield, Ohio, and includes a 

barrel fill area of about 50,000 buried drums which contain a variety of 

industrial wastes, bulk liquids, and sludges. Several companies have agreed to 

clean up the site under EPA’s Superfund Alternative Sites approach. 

Pictured are workers conducting Phase I remedial investigation activities. 

Photo courtesy of EPA Region 5, taken by Ohio EPA and CH2M Hill, Inc. 
U.S. Environmental Protection Agency 2007-P-00026

Office of Inspector General June 6, 2007

At a Glance


Catalyst for Improving the Environment 

Why We Did This Review 

We evaluated the U.S. 

Environmental Protection 

Agency’s (EPA’s) Superfund 

Alternative (SA) sites

approach. This approach is 

designed to help achieve 

EPA’s strategic goal of

cleaning up hazardous waste

sites. 

Background 

Since the 1980s, EPA has used 

variations of the SA approach 

to clean up Superfund 

National Priorities List (NPL) 

equivalent hazardous waste 

sites. The SA approach is an 

alternative to listing sites on 

the NPL. The NPL is a list of 

the Nation’s highest priority 

Superfund sites. Recent 

reviews have reported 

problems in EPA’s managing 

and implementing the SA 

approach. 

For further information, 

contact our Office of 

Congressional and Public 

Liaison at (202) 566-2391. 

To view the full report, 

click on the following link: 

www.epa.gov/oig/reports/2007/ 

20070606-2007-P-00026.pdf 

EPA Needs to Take More Action in 

Implementing Alternative Approaches to 

Superfund Cleanups

 What We Found 

EPA has not implemented effective management tools or controls for the SA 

approach. For example, (1) EPA has not finalized the universe of SA sites, (2) it 

does not have controls over designating SA sites in Superfund information 

systems or documenting hazard assessments for SA sites, and (3) it only measures 

results at SA sites for one of six Superfund cleanup measures. Until EPA 

addresses these limits in management controls and makes these controls more 

transparent, it cannot demonstrate outcomes and results of the SA approach. 

These limits impede EPA’s ability to make informed decisions about the merits 

of, or need for, the approach. EPA also has not provided the public reasonable 

assurance that SA sites rise to the level of NPL sites. 

In the recent past, EPA has been criticized for mismanaging the SA approach. 

External parties (including parties that participate in the SA approach) and an 

internal EPA study report problems with the approach. These problems are likely 

to continue until EPA addresses internal Agency recommendations to improve the 

consistency and transparency of the approach. It is also likely to continue until 

EPA addresses other management control weaknesses and develops a 

communication strategy. This strategy should inform the public about SA sites, 

the benefits of the SA approach, and community involvement opportunities at SA 

sites. EPA had recognized improvements were necessary and is working to make 

the approach more transparent and consistent. 

What We Recommend 

We recommend EPA track and report cleanup progress at SA sites, and improve 

its communications, information, and transparency about the SA approach. EPA 

generally concurred with the majority of the recommendations. However, it did 

not provide sufficient information to describe how or when it would implement 

them. The Agency will need to provide sufficient information on its actions to 

address OIG recommendations within 90 days. 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

OFFICE OF 

INSPECTOR GENERAL 

June 6, 2007 

MEMORANDUM 

SUBJECT: EPA Needs to Take More Action in Implementing Alternative Approaches 

to Superfund Cleanups 

 Report No. 2007-P-00026 

FROM: Wade T. Najjum

 Assistant Inspector General 

 Office of Program Evaluation 

TO: Granta Nakayama

 Assistant Administrator 

Office of Enforcement and Compliance Assurance 

Susan Parker Bodine 

 Assistant Administrator 

Office of Solid Waste and Emergency Response 

This is our report on the subject evaluation conducted by the Office of Inspector General (OIG) 

of the U.S. Environmental Protection Agency (EPA). This report contains findings that describe 

the problems the OIG has identified and corrective actions the OIG recommends. The OIG 

responded to the Agency’s draft report comments by making changes to the report and providing 

responses to EPA, as appropriate. This report represents the opinion of the OIG and does not 

necessarily represent the final EPA position. Final determinations on matters in this report will 

be made by EPA managers in accordance with established resolution procedures. 

The estimated cost of this report – calculated by multiplying the project’s staff days by the 

applicable daily full cost billing rates in effect at the time – is $580,283. 

Action Required 

In accordance with EPA Manual 2750, you are required to provide a written response to this 

report within 90 calendar days. The Office of Enforcement and Compliance Assurance should 

coordinate EPA comments on this report and provide a consolidated response. Your response 

should include a corrective action plan including milestone dates. Please email an electronic 
version of your response that complies with Section 508 of the Rehabilitation Act to Tina 

Lovingood at lovingood.tina@epa.gov. We have no objections to the further release of this 

report to the public. This report will be available at http://www.epa.gov/oig. 

If you or your staff have any questions regarding this report, please contact Carolyn Copper, 

Director for Program Evaluation, Hazardous Waste Issues, at 202-566-0829 or 

copper.carolyn@epa.gov; or Tina Lovingood, Project Manager, at 202-566-2906 or 

lovingood.tina@epa.gov. 
EPA Needs to Take More Action in Implementing 

Alternative Approaches to Superfund Cleanups 

Table of Contents 

Chapters 

1 Introduction ........................................................................................................... 1 

Purpose .......................................................................................................... 1 

Background .................................................................................................... 1 

Scope and Methodology................................................................................. 3 

Prior and Ongoing Reviews............................................................................ 3 

Noteworthy Achievements.............................................................................. 3 

2 EPA Lacks Reliable Information on the 

 Superfund Alternative (SA) Sites Approach....................................................... 5 

EPA Does Not Have a Baseline Universe...................................................... 5 

EPA Lacks Specific Guidance on Designating Superfund Alternative 

 (SA) Sites in the Superfund Information System....................................... 5 

EPA Has No Guidance That Defines Criteria for “Adequate” 

Hazard Ranking System (HRS) Documentation....................................... 5 

Recommendations ......................................................................................... 6 

Agency Comments and OIG Evaluation......................................................... 7 

3 EPA Is Inconsistent in Measuring Results.......................................................... 8 

The Office of Solid Waste and Emergency Response (OSWER) 

 Does Not Track and Report All Cleanup Measures at SA Sites............... 8 

Recommendations ......................................................................................... 10 

Agency Comments and OIG Evaluation......................................................... 10 

4 EPA Has Not Addressed Inconsistencies in Implementing the 

 SA Approach.......................................................................................................... 11 

EPA Has Not Taken Action on Sharing Site Assessment and 

 HRS Information ....................................................................................... 11 

Recommendations ......................................................................................... 12 

Agency Comments and OIG Evaluation......................................................... 13 

5 EPA Has No Communication Strategy on the SA Approach ............................... 14 

Public Information on the SA Approach Is Limited and Inconsistent.............. 14 

Recommendations ......................................................................................... 15 

Agency Comments and OIG Evaluation......................................................... 16 

Status of Recommendations and Potential Monetary Benefits................................. 17 
EPA Needs to Take More Action in Implementing 

Alternative Approaches to Superfund Cleanups 

Appendices 

A Hazard Ranking System (HRS) ........................................................................... 18 

B Details on Scope and Methodology..................................................................... 19 

C The Government Performance and Results Act (GPRA) and 

Superfund Performance Measures...................................................................... 20 

D Additional Perspectives on the SA Approach .................................................... 21

E Agency Comments on Draft Report and OIG Evaluation .................................. 23 

F Distribution ............................................................................................................ 38 
Chapter 1

Introduction 

Purpose 

We sought to determine whether the U.S. Environmental Protection Agency 

(EPA) has created an alternative process within the Superfund program that 

achieves EPA’s strategic objectives of cleaning up hazardous waste sites. We 

addressed the following questions: 

• Does EPA have reliable management information (such as a published 

universe of sites that meet Superfund Alternative Sites (SAS) criteria and 

have verifiable Hazard Ranking System (HRS) scores) to measure the 

progress of SAS cleanups and that is easily understood by the public and 

other interested stakeholders? (See Chapter 2.) 

• What strategic goals do SAS activities help EPA accomplish? Do SAS 

activities meet EPA objective 3.2.2 (cleanup and reuse contaminated land) 

or objective 3.2.3 (maximize Potentially Responsible Party (PRP) 

participation at Superfund sites), or both? Does EPA have metrics to 

measure progress on SAS activities? If so, what are the measures? (See 

Chapter 3.) 

• What activities or issues did the 120-Day Study team identify as 

“inconsistent” among regions using the SA approach? What is EPA doing 

to address these issues? (See Chapter 4.) 

• Has EPA communicated to the public, participants, and other stakeholders 

a clear and consistent message defining the SA approach and the expected 

benefits of using the SA approach? (See Chapter 5.) 

Background 

The Comprehensive Environmental Response, Compensation, and Liability Act 

established the Superfund program in 1980. Superfund is the Federal 

Government’s program to clean up the Nation’s uncontrolled and/or abandoned 

hazardous waste sites. EPA addresses the highest priority sites by listing them on 

the Superfund National Priorities List (NPL). The primary method for listing 

sites on the NPL is with the HRS. The HRS is a screening tool that uses 

information from limited investigations to assess the relative potential of sites to 

pose a threat to human health or the environment (see Appendix A for more HRS 

information). 

1 
Since the 1980s, the Superfund program has been using alternative approaches to 

clean up hazardous waste sites that had the potential to be listed on the NPL, but 

were not listed. Prior to 2002, EPA called these sites NPL equivalent. In the late 

1990s, or early 2000, the Agency started designating more than 200 sites as NPL 

equivalent in Superfund information systems. EPA first issued guidance on 

Superfund alternative cleanup approaches in 2002. The 2002 guidance changed 

the name of NPL equivalent sites to Superfund Alternative (SA) sites. EPA 

issued revised SAS guidance in 2004. Although EPA has not released a list of 

final SA sites, an April 2004 National Advisory Council for Environmental Policy 

and Technology (NACEPT) report indicated that 109 SA sites accounted for $227 

million in Superfund expenditures between Fiscal Years (FY) 1983 and 2003.1 

Current EPA guidance identifies several characteristics of SA sites. They include: 

• Sites that meet the criteria to be listed on the NPL. 

• Sites where viable and agreeable PRPs enter into enforceable agreements 

with EPA to perform site studies and/or cleanup work. 

• Sites that are treated in accordance with the practices normally followed at 

NPL sites. 

• Sites with agreements that contain one or more of the following 

provisions: 

o PRP-funded technical assistance for the community; 

o Financial assurance mechanisms to protect work continuity and 

assure completion of site work; 

o An agreement not to challenge NPL listing after partial cleanup; 

and 

o An agreement of the applicable statute of limitations for Natural 

Resource Damages (NRD) claims. 

Over the last 3 years, multiple recommendations have been made to improve or 

terminate the SA approach. 

• The April 2004 NACEPT report recommended that the SA approach 

remain a small pilot program until EPA gathered a broad range of 

perspectives on the value and limitations of the approach. The Council 

also recommended that an independent body produce, for public review 

and comment, a report describing the extent and performance of the SA 

approach and its compliance with the Comprehensive Environmental 

Response, Compensation, and Liability Act. 

1

 NACEPT, Final Report, April 12, 2004. According to EPA staff, the $227 million includes expenditures before 

the SAS guidance was issued and removal expenditures, which are not covered under the SAS guidance. It also 

includes some expenditures on non-SAS portions of sites. However, because EPA issued the first SAS guidance in 

June 2002, and expended $13 million on 109 SA sites in FY 2003, FY 2003 expenditures were made during a period 

where guidance on SAS existed. 

2 
• An April 2004 internal EPA report (120-Day Study) recommended 

improvements in the consistency of implementing the SA approach. It 

also recommended that EPA prioritize SA sites along with NPL sites.2 

• As reported by the Office of Management and Budget (OMB) in their 

2004 Report to Congress on the Costs and Benefits of Federal 

Regulations, the National Association of Manufacturers (NAM) 

recommended that EPA terminate the SA approach.3 

In response to recommendations and comments on the SA approach, the Office of 

Enforcement and Compliance Assurance (OECA) is now completing an internal 

study to define a universe of sites, evaluate outcomes and implementation of this 

approach, and study concerns raised by stakeholders. OSWER and OECA 

coauthored the relevant guidance documents and share responsibilities for 

implementing the SA approach. OECA helps regions with settlement negotiation 

issues and evaluates the SA approach. OSWER maintains EPA’s database and 

performs the same functions for SA sites as for NPL sites. These functions 

include reviewing cleanup documents and performing 5-year reviews. 

Scope and Methodology 

We complied with the Government Auditing Standards, issued by the Comptroller 

General of the United States. We performed our fieldwork from June 2005 

through July 2006. See Appendix B for additional details on Scope and 

Methodology. 

Prior and Ongoing Reviews 

We reviewed the three reports that address aspects of the implementation and 

effectiveness of the SA approach.4 We also regularly coordinated with OECA to 

determine progress on their ongoing internal review. 

Noteworthy Achievements 

In response to recommendations and comments on the SA approach, OECA is 

completing an internal study to define a universe of SA sites, evaluate outcomes 

and implementation of the SA approach, and study concerns raised by 

stakeholders. EPA has also recognized the need and is working to improve the 

SA approach to make it more transparent and consistent. During our review, 

some PRPs we spoke with reported on their positive experiences with the SA 

approach. These experiences include reduced overhead and oversight costs due to 

2

 EPA, Superfund: Building on the Past, Looking into the Future, April 22, 2004. This study is also referred to as the 

120-Day Study. 3

 OMB, Progress in Regulatory Reform: 2004 Report to Congress on the Costs and Benefits of Federal Regulations 

and Unfunded Mandates on State, Local, and Tribal Entities, 2004. NAM is an organization of federally regulated 

companies, some of which are PRPs at Superfund sites and are potentially impacted by Superfund regulations or 

SAS practices.

4

 (1) EPA, 120-Day Study; (2) OMB, Progress in Regulatory Reform; and (3) NACEPT, Final Report. 

3 
the streamlined process, and knowledgeable and flexible EPA staff. See 

Appendix D for details. 

4 
 Chapter 2

EPA Lacks Reliable Information on the Superfund 

Alternative (SA) Sites Approach 

EPA lacks reliable management information because it has not managed this 

approach with the necessary controls required to achieve desired outcomes. 

Without a baseline universe of sites or consistent procedures for identifying sites 

in CERCLIS5, EPA has not been able to generally assess progress or demonstrate 

benefits of the SA approach. Consequently, EPA has also not been able to 

communicate results to the public or make informed decisions about the full 

merits of the approach. Without guidance on documenting “adequate” SAS 

hazard ranking scores, EPA does not have controls to prevent the use of 

potentially incorrect scoring methods. The lack of these controls can lead to 

waste or inappropriate use of Superfund resources, and can lead some PRPs and 

other stakeholders to question the SA approach. 

EPA Does Not Have a Baseline Universe 

Since April 2005, EPA has been attempting to determine the universe of SA sites 

that meets eligibility criteria. However, it has not yet finalized or released the 

universe. Knowing the baseline is key to determining costs of SA sites, tracking 

their progress, and measuring and communicating results to the public. These 

activities allow EPA to make informed decisions about the merits of the approach. 

EPA Lacks Specific Guidance on Designating Superfund Alternative (SA) Sites in 

the Superfund Information System 

EPA lacks specific guidance on when to designate (flag) SA sites in the 

Superfund information system (CERCLIS). Consequently, according to EPA’s 

SAS evaluation Team Leader: “...all regions handle it [designation of SA sites in 

CERCLIS] differently.” Lack of guidance and unilateral decisionmaking can 

result in designations that are inconsistent with guidance and generate poor 

quality data on the SAS universe. EPA’s SAS evaluation Team Leader 

acknowledges that flagging a SA site in CERCLIS is a “major issue.” The Team 

Leader is looking at this issue as part of its ongoing evaluation of the SA 

approach. In response to our draft report, EPA stated its evaluation report will 

recommend flagging specific SA agreements. 

EPA Has No Guidance That Defines Criteria for “Adequate” Hazard Ranking 

System (HRS) Documentation 

According to current SAS guidance, if it becomes necessary to propose an SA site 

to the NPL, EPA should have “adequate documentation” supporting an HRS score 

5

 Comprehensive Environmental Response, Compensation, and Liability Information System. 

5 
of 28.5 or higher. However, the guidance lacks definitions or criteria for 

“adequate.” OECA has recognized this lack as a problem. During its ongoing 

internal review, OECA discovered that 13 SA sites initially designated by regions 

do not score 28.5 or higher. OECA determined this situation was due to 

inconsistent regional HRS scoring methods that were not equally reliable because 

of the level of detail needed for some but not others. In addition, the Agency has 

not designated a consistent scoring method that is acceptable and reliable for 

designating a SA site. Consistent and reliable documentation of HRS scores at SA 

sites is an internal control to ensure compliance with the SAS guidance and 

approach. 

In the recent past, some PRPs have criticized EPA for wrongly designating SA 

sites because they were not believed to meet the hazard ranking criteria. If EPA 

does not define “adequate documentation” using a consistent method to support 

SAS HRS scores, it does not have control over the use of potentially less reliable 

scoring methods. Where less reliable scoring methods are used, it can lead to 

waste or inappropriate use of Superfund resources. EPA cannot address 

transparency concerns that led to the SA approach being characterized as “subject 

to abuse.” It also cannot assure PRPs that SA sites rise to the level of an NPL 

site. 

Recommendations 

We recommend that the Assistant Administrator for Enforcement and Compliance 

Assurance and the Assistant Administrator for Solid Waste and Emergency 

Response collaborate to: 

2-1 Publish a universe of SA sites that meets the SAS eligibility 

criteria and are designated SA sites and regularly update the list as 

the universe changes. 

2-2 Develop specific instructions on when to use the SA designation 

(e.g., for sites or agreements) and update the Superfund Program 

Implementation Manual (SPIM) accordingly. The instructions 

should include provisions that state the SAS flag should not be 

removed even if the site is deleted, cleaned up, or proposed for the 

NPL, so that controls over documentation of SA sites are 

maintained. 

2-3 Establish and direct Regions to use a consistent HRS scoring 

method that is acceptable and reliable for designating a Superfund 

Alternative site. At minimum, documentation on the score should 

be verifiable. 

6 
Agency Comments and OIG Evaluation 

The OIG made changes to the report based on the Agency’s comments where 

appropriate. Appendix E provides the full text of the Agency comments and OIG 

response. 

The Agency partially concurred with Recommendations 2-1 and 2-2. However, 

the proposed actions are not acceptable because EPA did not provide details to 

describe how and when it will implement the recommendations. Within 90 days, 

the Agency needs to provide details (as described in Appendix E) on these actions 

as well as milestones for completing corrective actions. 

The Agency disagreed with Recommendation 2-3, claiming that no actions were 

necessary since criteria in “40 CFR Part 300 Appendix A” were sufficient. We do 

not believe the Agency’s position addresses the causes underlying the OIG 

recommendation because EPA has not implemented controls to prevent the use of 

potentially less reliable scoring methods by the regions. We consider the 

recommendation unresolved. The OIG found that regions were using various, 

sometimes unreliable, methods for generating HRS scores, at a time when “40 

CFR Part 300 Appendix A” criteria existed. Therefore, past EPA experience 

indicates that simple awareness of the CFR criteria is not sufficient to ensure that 

regions use a reliable, acceptable, and verifiable HRS scoring method. 

During its internal evaluation, OECA removed the SA designation from 13 sites 

that did not score 28.5 or above and determined this removal was due to 

inconsistent regional scoring methods. (Office of Site Remediation Enforcement 

(OSRE) staff told us some of the methods regions used are more reliable than 

others.) In response to our discussion draft, Agency staff stated that “The score 

(while not necessarily exact prior to a full package) is verifiable with the basic 

information that is fed into Quickscore, the pre-scoring tool supported by EPA 

OSRTI [Office of Superfund Remediation and Technology Innovation] and 

primarily used by EPA Regions today.” Furthermore, EPA promotes the use of 

Quickscore for use by PRPs in response to our draft report Recommendation 4-1. 

Based on the Agency’s comments, we revised the recommendation. Within 90 

days, EPA will need to consider the revised Recommendation 2-3, provide details 

(as described in Appendix E) on its actions to implement the recommendation, 

and provide milestones for completing the actions. 

7 
Chapter 3

EPA Is Inconsistent in Measuring Results 

OSWER and OECA inconsistently measure results for SA sites. OSWER tracks 

and reports only one of six cleanup activities or Government Performance and 

Results Act (GPRA) measures at SA sites that it routinely reports for NPL sites. 

In contrast, OECA tracks and reports all of the enforcement-related GPRA 

measures at SA sites that it normally does at NPL sites. EPA’s current SAS 

guidance states that practices followed at SA sites should generally be the same as 

those followed at NPL sites. Because OSWER decided not to track all cleanup 

measures at SA sites, it is missing opportunities to demonstrate, or determine, 

how SAS accomplishments contribute to Superfund strategic goals. 

The Office of Solid Waste and Emergency Response (OSWER) Does Not Track 

and Report All Cleanup Measures at SA Sites 

OSWER only measures site assessments and final assessment decisions at SA 

sites. OECA tracks and reports all relevant GPRA enforcement measures at SA 

sites. Table 3-1 shows the GPRA measures that OSWER and OECA track and 

report for SA and NPL sites (see Appendix C for details on GPRA and Superfund 

performance measures). OSWER is contemplating measuring construction 

completions at SA sites. 

Table 3-1: GPRA Measures Tracked and Reported for NPL and SA Sites in FY 2007 

Cleanup Measures (OSWER) NPL Sites SA Sites 

Site assessments and final site 

assessment decisions 

9 9 

Final remedy selection 9 

Sitewide Ready-for-Reuse (new in FY 

2007) 9 

Construction complete 9 

Human exposure under control 9 

Contaminated groundwater migration 

under control 9 

Enforcement Measures (OECA) NPL Sites SA Sites 

Reach settlement or take enforcement 

action at 95% of sites with viable, liable 

PRPs 

9 9 

Statute of limitations cases with 

unaddressed past total costs ≥ $200,000 9 9 

Source: EPA Office of Inspector General (OIG) analysis of EPA data. 

8 
In FY 2004, the SPIM noted the importance of tracking results at SA sites.6 That 

year, EPA added information to the SPIM about SA sites to ensure “accurate 

reporting of work and appropriate credit to EPA regions for cleanup of non-NPL 

sites [such as SA sites] as well as NPL sites.” EPA’s 120-Day Study also 

encouraged program offices to track and report all cleanup progress at SA sites so 

that all program accomplishments can be communicated to the public and 

Congress. 

We asked the Director of the Superfund Assessment and Remediation Division 

why OSWER was not measuring all Superfund results at SA sites. The Director 

referred us to a Superfund Team Leader who provided these reasons: 

1) Concerns about efficiency in tracking measures at SA sites; 

2) NACEPT concerns [NACEPT recommended EPA not integrate 

performance data from SA sites when reporting progress at NPL sites7]; 

and 

3) Guidance from OMB which indicated fewer performance measures are 

better. 

In response to these concerns, we noted the following: 

1) EPA’s SAS evaluation leader does not expect the SA approach to 

become a big program. Therefore, tracking performance measures for a 

small number of sites would not be burdensome. In addition, OSWER 

does not have to implement new information systems to track 

performance at SA sites. It already has the ability to track and report 

Superfund performance measures through CERCLIS. 

2) EPA could generate separate performance reports for NPL and SA sites. 

3) Measuring the performance and outcomes at SA sites does not involve 

more measures. Rather, it involves measuring the same activities that 

EPA currently measures for NPL sites. 

According to the OECA evaluation lead, the former Assistant Administrator for 

OSWER committed to tracking construction completions at SA sites. However, 

EPA has not updated the SPIM to indicate that regions should track and report 

construction completion at SA sites. As of October 16, 2006, no SA sites had 

achieved construction completion. By measuring and tracking all standard 

cleanup measures at SA sites, OSWER can demonstrate the outcomes of 

Superfund investments and provide an incentive to regions by more thoroughly 

accounting for their performance. 

6

 The SPIM provides guidance and direction on how to achieve Superfund program goals and targets. 7

 The Superfund Team Leader told us that NACEPT recommended EPA focus on NPL sites, when in fact NACEPT 

stated that EPA should continue to expand its tracking system to other sites receiving Superfund dollars, and used 

SA sites as an example. 

9 
Recommendations 

We recommend that the Assistant Administrator for Solid Waste and Emergency 

Response: 

3-1 Track and report all Superfund GPRA measures at SA sites. This 

includes construction completions, final remedy selection, human 

exposure under control, migration of contaminated groundwater 

under control, and sitewide ready-for-reuse. Report GPRA 

measures at SA sites separately from GPRA measures at NPL 

sites. 

3-2 Revise applicable guidance, manuals, or directives to reflect that 

these performance measures will be tracked and reported for SA 

sites. 

Agency Comments and OIG Evaluation 

The OIG made changes to the report based on the Agency’s comments where 

appropriate. Appendix E provides the full text of the Agency comments and OIG 

response. 

The Agency generally concurred with Recommendation 3-1 and offered an 

alternative for Recommendation 3-2, which we accept. However, EPA did not 

provide sufficient information to describe how and when it would implement the 

recommendations. Within 90 days, the Agency will need to provide details (as 

described in Appendix E) on these actions as well as milestones for completing 

the actions. 

10 
Chapter 4 

EPA Has Not Addressed Inconsistencies in 

Implementing the SA Approach 

EPA has not addressed the regional inconsistencies in implementing the SA 

approach raised in the Agency’s 120-Day Study. The study reported that regions 

did not provide PRPs with consistent SAS criteria and transparent site assessment 

information. These problems contributed to perceptions and allegations from 

120-Day Study interviewees that the SA approach is “subject to abuse.” 

Continued inaction is likely to exacerbate concerns about EPA’s fairness and 

authority in implementing the SA approach. Some PRPs question EPA’s 

authority to request provisions in SAS. PRPs, and other stakeholders, may 

continue to question the SA approach until EPA implements key management 

controls to improve transparency. 

EPA Has Not Taken Action on Sharing Site Assessment and HRS Information 

OIG analysis shows that EPA’s actions to address the 120-Day Study’s 

recommendation to share site assessment information have not been implemented 

and, at best, are in progress. However, in June 2006, EPA reported that its actions 

were complete. Table 4-1 shows the recommendation and EPA’s response. 

Table 4-1: 120-Day Study Recommendation on SA Approach and EPA’s Response 

120-Day Study Report, April 22, 2004 120-Day Study Action Plan Status, June 2006 

Recommendation 25: “OSWER should 

revise the Superfund Alternative Site 

policy to ensure that criteria for being a 

Superfund Alternative Site are uniform and 

that the Regions provide the PRPs and 

other interested parties with transparent 

site assessment and pre-scoring 

information. (Near term)” 

“The revised SAS Guidance (signed 6/17/04) 

clarifies the criteria that SAS agreements and 

cleanups must meet, and encourages regions to 

discuss the SA approach with PRPs prior to the 

start of negotiations. The transmittal memo for the 

revised SAS guidance commits to improving the 

transparency of the SAS approach. We 

(OSRE/OSRTI) [Office of Site Remediation and 

Enforcement and the Office of Superfund 

Remediation and Technology Innovation] will be 

working with the Regions on ways to enhance the 

transparency of SAS designations. For example, a 

model general notice letter was developed to send 

to PRPs explaining the SA approach and the listing 

approach, and inviting them to participate as a SA 

site. We are also working on improving the quality 

of the SAS data in CERCLIS. In addition, the 

forthcoming guidance on Technical Assistance 

Plans (TAPs) includes ways to ensure that affected 

communities are adequately informed about SA 

site designations and opportunities for technical 

assistance. Status: Complete” 

Source: EPA, 120-Day Study, and June 2006 Action Plan Status. 

11 
According to EPA, it issued the 2004 guidance and the January 2005 SAS general 

notice letter template to address Recommendation 25. However, neither of these 

documents addresses sharing HRS score documentation and site assessment 

information. The letter contains only one sentence about the eligibility criteria for 

SA approach: “EPA Region X believes the site qualifies for the SA approach.” 

In addition, the 2004 SAS guidance does not indicate how or what site assessment 

information is to be shared with PRPs. 

In June 2006, members of NAM and the Superfund Settlements Project (SSP)8 

told us they were unaware of any changes that addressed the concerns about the 

lack of transparency on SAS site assessments and HRS scores (see Appendix D 

for more details). Specifically, two members confirmed that EPA had not 

provided access to HRS scoring documents. Access to this information would 

have allowed the PRP to assess site conditions, their potential liability, and 

eligibility for SAS. Four of six SSP members did not believe their sites met the 

eligibility criteria for listing on the NPL. In the absence of site assessment 

information, they questioned whether their sites were appropriate for the SA 

approach. Further, NAM recommended EPA terminate the SA approach. NAM 

believes regions pursue site cleanups without regard to risk or a company’s 

accountability. 

Some PRPs also raised some concerns about implementing the SA approach 

which they characterized as due process issues. For example, NAM members 

stated that the financial assurance requirements in the current guidance were more 

stringent than for PRPs cleaning up NPL sites. According to NAM members, the 

SAS community involvement requirements are greater than the NPL process. 

NAM members also believe the provisions not to challenge NPL listing after 

partial cleanup and to waive any time limitations defense for Natural Resource 

Damages (NRD) claims are due process rights they have to give up under the SA 

approach. The Agency provided documentation that it has the authority to request 

the SAS provisions related to NPL listing, financial assurance, community 

involvement, and waiver of NRD claims. In addition, the Agency’s position is 

that there is no requirement to have all of these provisions in a settlement 

agreement and that private parties are not forced to sign agreements they find 

unacceptable. 

Recommendations 

We recommend that the Assistant Administrator for Enforcement and Compliance 

Assurance and the Assistant Administrator for Solid Waste and Emergency 

Response collaborate, as needed, to: 

4-1 Determine the complete list of site assessment information regions 

can share with PRPs during SA site negotiations. 

8

 The Superfund Settlements Project is a group of companies representing various sectors of American industry 

whose stated purpose is to improve the Superfund program. Some of these companies are also members of NAM. 

12 
4-2 Revise the SAS general notice letter to include specific details 

about how site assessment information should be shared with PRPs 

during SA site negotiations. The revisions should include the 

complete list of site assessment information (see recommendation 

4-1). 

Agency Comments and OIG Evaluation 

The OIG made changes to the report based on the Agency’s comments where 

appropriate. Appendix E provides the full text of the Agency comments and OIG 

response. 

The Agency partially disagreed with Recommendation 4-1 by stating that it had 

taken action to address this recommendation. We disagreed that its action met the 

intent of the recommendation to increase transparency and revised the 

recommendation based on the Agency’s response. EPA states “...Regions can 

provide PRPs with site assessment reports, such as the PA, SI, and ESI reports.” 

This response indicates that other site assessment information can be made 

available to PRPs. We consider the recommendation open and unresolved. 

Within 90 days, EPA will need to consider the revised recommendation, provide 

details (as described in Appendix E) on how it will implement the 

recommendation, and provide milestones for completing it. 

The Agency disagreed with Recommendation 4-2, but noted that it would 

partially implement it. The proposed action does not meet the intent of the 

recommendation, which we revised to be consistent with recommendation 4-1. 

We consider the recommendation open and unresolved. Within 90 days, EPA 

will need to consider the revised recommendation and provide details (as 

described in Appendix E) on its actions to implement recommendation 4-2 and 

provide milestones for completing the actions. 

13 
Chapter 5

EPA Has No Communication Strategy 

on the SA Approach 

EPA has not developed a communication and outreach strategy to inform the 

public about SA sites in their communities, the benefits of the SA approach, and 

community involvement opportunities at SA sites. EPA did not develop this 

strategy because it believed its guidance was sufficient. In contrast, an abundance 

of communication and outreach information is available to the public on NPL 

sites. Of the limited public information about SA sites, some is inconsistent with 

Agency guidance or internal Agency information. The lack of a communication 

and outreach strategy to address limitations in public information and awareness 

of the SA approach impedes Agency transparency and public awareness. It also 

impedes EPA’s ability to implement this cleanup process in a credible and 

effective manner. 

Public Information on the SA Approach Is Limited and Inconsistent 

EPA does not have information on its Websites, or in its guidance document, that 

explains how a site becomes an SA site. EPA also has not communicated the 

benefits of this approach or opportunities for community involvement. All of this 

information is available online for NPL sites. Furthermore, regional Websites 

contain limited information about the SA approach that is inconsistent with 

current guidance and internal Agency information on SA sites. 

According to EPA staff, the Agency’s communications tool for the SA approach 

is its guidance documents. However, the current guidance document does not 

explain how a site becomes an SA site or the value of the SA approach. In 

addition, the guidance does not provide site-specific details that would facilitate 

community involvement in the cleanup process. 

The current SAS guidance does not mention any benefits of the SA approach. 

However, during the course of this review, OECA’s Regional Support Division 

Director and OSWER’s Assessment and Remediation Division Director proposed 

several benefits, including: 

1) Cost savings: PRPs generally perform cleanup for less money than EPA. 

Both EPA and PRPs may incur fewer or no litigation costs. EPA and the 

PRPs can save the cost of listing the site on the NPL. 

2) Resource efficiencies: EPA can use resources at other sites that do not 

have PRPs to fund cleanup. 

3) More timely cleanups: Without time taken to list the site, cleanups can 

start sooner.9 

9

 EPA did not provide any plans for documenting and communicating these benefits to the public or other 

stakeholders. 

14 
Current SAS guidance also does not provide information on how to implement 

technical assistance plans for communities. The guidance calls for SAS 

agreements to include a Technical Assistance Plan (TAP) for communities. 

However, EPA has not finalized the additional guidance needed for this plan. 

TAPs are supposed to ensure the same type of community technical assistance 

opportunities at SA sites, which exist at NPL sites. 

Finally, the limited online information about SA sites is incomplete or 

inconsistent with current guidance. NPL sites have Site Progress Profiles. These 

contain information on cleanup progress, site location, contamination and 

exposure data, and progress toward meeting GPRA goals. Although Site Progress 

Profiles are publicly available online for all NPL sites, they exist for only 7 of 23 

sites that meet SAS eligibility criteria. 

Some of the regional site information does not match internal Agency 

information, or is inconsistent with guidance. For example, Region 5 has a 

Website on Superfund Alternative Sites which includes a list of SA sites and fact 

sheets for each site. However, the Region’s list of SA sites does not match 

OECA’s list. Other regions have online information that is inconsistent with 

current guidance. Specifically, Region 4 uses the terms NPL caliber and NPL 

equivalent on its Website, and Region 10 uses the term NPL equivalent. These 

are former terms and labels for SA sites and are not consistent with the current 

guidance. The other seven regional Websites have no information about SA sites 

available. 

Recommendations 

We recommend that the Assistant Administrator for Enforcement and Compliance 

Assurance and the Assistant Administrator for Solid Waste and Emergency 

Response collaborate, as needed, to: 

5-1 Develop, and release to the public, a communication and outreach 

strategy, to include information on how a site becomes an SA site, 

the benefits of the SA approach, and SA site progress profiles. 

5-2 Direct regions to discontinue use of terms such as NPL caliber and 

NPL equivalent to describe the status of SA sites, or the SA 

approach. 

5-3 Finalize, and release to the public, the TAP guidance for SA sites. 

15 
Agency Comments and OIG Evaluation 

The OIG made changes to the report based on the Agency’s comments where 

appropriate. Appendix E provides the full text of the Agency comments and OIG 

response. 

The Agency concurred with Recommendations 5-1, 5-2, and 5-3. The Agency 

stated that “OSWER/OECA agrees that improvements can be made in the 

consistency and transparency of the SA approach and plans to act on the 

recommendations in Chapter 5.” 

While the Agency agreed to implement Recommendations 5-1 and 5-2, it did not 

provide details on how it would implement them and when. Within 90 days, the 

Agency needs to provide details on its planned actions (as described in 

Appendix E) and milestones for completing them. The Agency’s response to 

Recommendation 5-3 meets the intent of the recommendation, is acceptable, and 

we consider Recommendation 5-3 closed. 

16 
Status of Recommendations and 

Potential Monetary Benefits 

POTENTIAL MONETARY 

RECOMMENDATIONS BENEFITS (in $000s) 

Rec. 

No. 

Page 

No. Subject Status1 Action Official 

Planned 

Completion 

Date 

Claimed 

Amount 

Agreed To 

Amount 

2-1 6 Publish a universe of SA sites that meets the SAS 

eligibility criteria and are designated SA sites and 

regularly update the list as the universe changes. 

O Assistant Administrators 

OECA and OSWER 

Unspecified 

2-2 6 Develop specific instructions on when to use the SA 

designation (e.g., for sites or agreements) and update 

the Superfund Program Implementation Manual 

(SPIM) accordingly. The instructions should include 

provisions that state the SAS flag should not be 

removed even if the site is deleted, cleaned up, or 

proposed for the NPL, so that controls over 

documentation of SA sites are maintained. 

U Assistant Administrators 

OECA and OSWER 

2-3 6 Establish and direct Regions to use a consistent HRS 

scoring method that is acceptable and reliable for 

designating a Superfund Alternative site. At minimum, 

documentation should be verifiable. 

U Assistant Administrators 

OECA and OSWER 

3-1 10 Track and report all Superfund GPRA measures at SA 

sites. This includes construction completions, final 

remedy selection, human exposure under control, 

migration of contaminated groundwater under control, 

and sitewide ready-for-reuse. Report GPRA 

measures at SA sites separately from GPRA 

measures at NPL sites. 

O Assistant Administrator 

OSWER 

Unspecified 

3-2 10 Revise applicable guidance, manuals, or directives to 

reflect that these performance measures will be 

tracked and reported for SA sites. 

U Assistant Administrator 

OSWER 

4-1 12 Determine the complete list of site assessment 

information regions can share with PRPs during SA 

site negotiations. 

U Assistant Administrators 

OECA and OSWER 

4-2 13 Revise the SAS general notice letter to include specific 

details about how site assessment information should 

be shared with PRPs during SA site negotiations. The 

revisions should include the complete list of site 

assessment information (see recommendation 4-1). 

O Assistant Administrators 

OECA and OSWER 

Unspecified 

5-1 15 Develop, and release to the public, a communication 

and outreach strategy, to include information on how a 

site becomes an SA site, the benefits of the SA 

approach, and SA site progress profiles. 

O Assistant Administrators 

OECA and OSWER 

Unspecified 

5-2 15 Direct regions to discontinue use of terms such as 

NPL caliber and NPL equivalent to describe the status 

of SA sites, or the SA approach. 

O Assistant Administrators 

OECA and OSWER 

Unspecified 

5-3 15 Finalize, and release to the public, the TAP guidance 

for SA sites. 

O Assistant Administrators 

OECA and OSWER 

9/30/07 

O = recommendation is open with agreed-to corrective actions pending 

C = recommendation is closed with all agreed-to actions completed 

U = recommendation is undecided with resolution efforts in progress 

17 

1 
Appendix A 

Hazard Ranking System (HRS) 

The HRS is the scoring system used by EPA’s Superfund program to assess the relative potential 

threat associated with the actual or potential releases of hazardous substances. The HRS is the 

primary screening tool for determining whether a site is to be included on the NPL. The HRS 

score for a site is determined by evaluating four pathways of potential human exposure: 

• Ground water migration (drinking water); 

• Surface water migration (drinking water, human food chain, and environmental); 

• Soil exposure (resident population and nearby population); and 

• Air migration (population, sensitive environments). 

Any site scoring 28.5 or above is eligible for the NPL. All information used in scoring must be 

recorded in the HRS documentation record. The documentation record is the central element of 

the HRS package, and contains all of the information upon which a site score is based. For sites 

proposed to the NPL, the documentation record and references are available for public review. 

All HRS scoring packages developed by States and EPA contractors are subject to quality 

control review by EPA regional site assessment staff. After regional quality control is complete, 

packages undergo an in-depth quality assurance review at EPA Headquarters. EPA 

Headquarters does not require HRS scoring packages for SA sites, unless the site is proposed to 

the NPL. 

18 
Appendix B 

Details on Scope and Methodology 

In answering our questions, we reviewed EPA’s 2002 and 2004 SAS guidance, EPA’s Superfund 

Program Implementation Manual (SPIM) for FY 2002 through FY 2007, EPA’s 120-Day Study, 

and the NACEPT and OMB reports. We supplemented our review of documents by 

interviewing Superfund program managers and staff. Additional and specific steps we took to 

review internal controls and answer each question follow. 

To determine how SA sites contribute to EPA’s strategic goals, we reviewed the requirements of 

the Government Performance and Results Act (GPRA) of 1993, EPA’s strategic plans, and 

annual performance plans and reports (see Appendix C). 

To determine how EPA has communicated the SA approach to the public, participants and other 

stakeholders, we reviewed EPA’s methods for communicating how the SAS process works and 

how cleanups at SA sites are progressing. We examined EPA’s Superfund Websites, including 

the Superfund Community Involvement Toolkit, regional Websites, and Site Progress Profiles. 

We compared how EPA communicates the SA approach to its public communications and 

information on the NPL process. 

We obtained interviews and testimonial evidence from OECA and OSWER staff and 

representatives of NAM, Superfund Settlements Project (SSP) and other PRPs that had 

experience with the SA approach. Because feedback from NACEPT, NAM, and EPA’s 120-Day 

Study was generally negative, we asked EPA if it was aware of any PRPs that had positive 

experiences. EPA provided us with PRP contacts it thought viewed the SA approach positively. 

We sent a short questionnaire to seven PRPs to assess their general views and experiences with 

the SA approach (see Appendix D). We selected the seven PRPs because they were associated 

with currently designated SA sites; EPA had not contacted them during the course of their 

internal evaluation; and they were not members of SSP, who had already provided us feedback. 

To determine what the 120-Day Study authors found inconsistent about the SA approach, we 

queried the study leader (the Deputy Assistant Director for EPA’s Office of Air and Radiation). 

Because the study leader did not have several of the records needed, where possible, we went 

directly to the sources of the study’s findings, including the Director and staff of the Emergency 

and Remedial Response Division in Region 2, and Director and staff of the Superfund Division 

in Region 9 (to determine why these regions do not use the SA approach) and representatives of 

NAM and SSP (to obtain information about EPA’s practices in sharing site assessment and HRS 

information). 

To determine whether EPA has reliable management information on the SA approach, we 

considered and reviewed information and documents gathered in answering our previous 

questions on how EPA communicates and determines the benefits of the SA approach. We 

reviewed OECA’s analysis and progress in identifying a universe of SA sites. 

19 
Appendix C 

The Government Performance and Results Act 

(GPRA) and Superfund Performance Measures 

GPRA requires Federal agencies to prepare performance plans with annual performance goals 

and measures to help move them toward managing for results. Performance measurement is the 

monitoring and reporting of program accomplishments, particularly progress toward preestablished goals. Performance measures address the type of program activities conducted, the 

direct products and services delivered by a program (outputs), and the results of those products 

and services (outcomes). Effective performance measurement enables an agency to establish 

baselines; identify and prioritize problems; and evaluate, manage, and improve programs. To 

meet GPRA requirements, EPA’s strategic plan outlines the Agency’s five long-term goals and 

guides in establishing the annual goals that EPA must meet along the way. To fulfill its five 

strategic goals, the plan includes a series of more specific objectives and sub-objectives. Each of 

the objectives has performance measures designed to demonstrate progress in achieving the 

objective and, eventually, the strategic goal. 

In EPA’s current 2006—2011 Strategic Plan, the Superfund program is under Goal 3, Land 

Preservation and Restoration. Under Goal 3, “By 2011, [EPA will] control the risks to human 

health and the environment by mitigating the impact of accidental or intentional releases by 

cleaning up and restoring contaminated sites or properties to appropriate levels.” Specific 

Superfund activities are under Objective 3.2: Restore Land. This objective includes three subobjectives: (1) prepare for and respond to releases, (2) clean up and reuse land, and (3) maximize 

PRP participation at Superfund sites. In FY 2007, the Superfund cleanup program is measuring 

its progress on these sub-objectives through six strategic targets: 

• Performing site assessments and making final assessment decisions; 

• Selecting final remedies designed to clean up contamination to risk levels that protect 

human health and the environment and are appropriate for anticipated future land use; 

• Completing construction of selected remedies; 

• Protecting the public from the health effects of exposure to contamination; 

• Controlling the migration of contaminated groundwater; and 

• Achieving the designation “Sitewide Ready for Reuse” at construction complete NPL 

sites. 

In FY 2007, the Superfund enforcement program is measuring its progress by applying the 

Enforcement First strategy and by recovering costs. Specifically, EPA will: 

• Reach a settlement or take an enforcement action before the start of a remedial action at 

95 percent of Superfund sites having viable, liable responsible parties; and 

• Address all statute of limitations cases for Superfund sites with unaddressed total past 

costs equal to or greater than $200,000. 

20 
Appendix D 

Additional Perspectives on the SA Approach 

During our evaluation, we met with members of the National Association of Manufacturers 

(NAM) and the Superfund Settlements Project (SSP) and surveyed seven other PRPs to gather 

additional perspectives on the SA approach. Most of the feedback from NAM and SSP was 

negative. Therefore, we asked EPA to provide us with PRPs it thought viewed the SA approach 

positively. We surveyed seven of these PRPs. The following is a summary of information 

gathered from the seven PRPs we surveyed, and of information provided by NAM and SSP 

members. 

OIG Survey of PRPs 

We sent a short questionnaire to seven PRPs to obtain their general views and experiences with 

the SA approach. Six of the seven PRPs provided responses to our questionnaire. Four of six 

PRPs stated that they had generally positive overall experiences with the SA approach. Some of 

the key reasons that PRPs had positive experiences were: 

• Overhead and oversights costs were reduced because the SA approach was streamlined. 

• EPA staff were professional, reasonable, knowledgeable, and flexible. 

• The region has more decisionmaking authority during the SA approach than during the 

NPL process. 

However, some PRPs made suggestions regarding the SA approach: 

• Regions need maximum flexibility to facilitate timely remediation and the SA approach 

needs more streamlining. 

• EPA needs to reduce document review time and oversight. 

• EPA needs to reduce negotiation time. 

• EPA needs to be more cooperative when deciding deadlines and goals with PRPs. 

NAM and SSP Perspectives 

We interviewed NAM members after we became aware of their recommendation to OMB to 

terminate the SA approach. NAM believed the SAS guidance encourages regional offices to 

evade the requirements of the NPL and to clean up sites without regard to risk or PRP 

accountability for the site. Members of SSP were also present during our interviews with NAM; 

some SSP members are NAM members. We posed followup questions to SSP about concerns 

we heard during our interviews, to determine whether EPA had responded to their concerns. 

Below we summarize the key concerns. 

• Some PRPs criticized and challenged EPA for not sharing site assessment or HRS 

scoring information with participants; and 

21 
• Some PRPs believed due process rights are compromised because SA site cleanups can 

involve different requirements, and in some cases more stringent requirements, than 

cleanups conducted under the NPL process. 

As discussed in Chapter 4, we did not find evidence that EPA has directly and effectively 

addressed these concerns. Furthermore, a 2004 Supreme Court ruling (Cooper Industries, Inc. v. 

Aviall Services Inc.) has left some PRPs questioning their ability to seek cost recovery from other 

liable parties for voluntarily conducted cleanups, such as those EPA conducts under its SA 

approach. 

22 
_______________________________________________________________________ 

Appendix E 

Agency Comments on Draft Report 

and OIG Evaluation 

MEMORANDUM 

SUBJECT: Comments on the Office of Inspector General’s March 19, 2007 Draft Evaluation 

Report, “EPA Needs to Take More Action in Implementing Alternative 

Approaches to Superfund Cleanups” 

FROM: Granta Y. Nakayama, Assistant Administrator 

Office of Enforcement Compliance Assurance (OECA) 

Susan P. Bodine, Assistant Administrator 

Office of Solid Waste and Emergency Response (OSWER) 

TO: Carolyn Copper, Director for Program Evaluation 

Hazardous Waste Issues 

Office of Inspector General (OIG) 

On March 19, 2007, OECA and OSWER received OIG’s draft evaluation report, “EPA 

Needs to Take More Action in Implementing Alternative Approaches to Superfund Cleanups.” 

As you know, OECA’s Office of Site Remediation Enforcement (OSRE) and OSWER’s Office 

of Superfund Remediation and Technology Innovation (OSRTI) jointly developed the relevant 

guidance documents10 on the Superfund Alternative approach and have overseen its 

implementation. 

OSWER/OECA offers three categories of comments on the draft report: (1) general 

comments and major concerns (below); (2) specific comments to report recommendations (see 

Attachment 1, with a Supplemental Response on Recommendation 4-3); and (3) detailed 

comments on the draft report that are not specifically tied to particular draft recommendations 

(see Attachment 2). 

 June 24, 2002, “Response Selection and Settlement Approach for Superfund Alternative Sites” (SAS Guidance); 

June 17, 2004, “Revised Response Selection and Settlement Approach for Superfund Alternative Sites” (Revised 

SAS Guidance). 

23 

10
GENERAL COMMENTS 

• We concur with some of OIG’s proposed recommendations and, as specified in the 

attached chart, have initiated or planned corrective actions as part of our own evaluation 

of the SA approach. 

• Notably, OSWER/OECA agrees that continued integration of accurate SA approach data 

and outcomes into current Superfund systems is appropriate. OSWER/OECA will weigh 

the pros and cons and the difficulty/resource intensiveness of tracking all GPRA 

measures at sites following the SA approach (Recommendations 2-1, 2-2). 

• OSWER/OECA also agrees that improvements can be made in the consistency and 

transparency of the SA approach and plans to act on the recommendations in Chapter 5. 

MAJOR CONCERNS 

• The draft report states that “OECA is the lead on the SAS approach, and [OSWER] 

provides support,” and, repeatedly through the report, suggests that OECA is the lead on 

the SA approach. As stated above, OSWER and OECA co-authored the relevant 

guidance documents and share responsibilities for implementing the SA approach. We 

ask that this partnership be reflected accurately in the OIG evaluation report. 

OIG response: 

Prior to receiving the Agency’s April 16, 2007 response, OSRE staff told us that, “OSRE is 

considered the lead on the SAS initiative with support from OSRTI.” However, we have 

revised the final report based on the official, and current Agency view that, OECA and 

OSWER share duties in implementing the SA approach. 

• With Recommendation 4-3, OIG recommends that the SAS guidance and general notice 

letter be revised to include language from an EPA legal opinion stating EPA’s legal 

authority to request certain provisions in SA agreements and that no due process 

violations are associated with these provisions. OSWER/OECA disagrees with OIG’s 

recommendation. OECA developed the model language and documents (including the 

four SA provisions) with the advice of the Office of General Counsel (OGC) and in 

consultation with the U.S. Department of Justice (DOJ). OGC has reviewed OIG’s draft 

report, and continues to believe that EPA has the legal authority to enter into agreements 

that include the SA provisions and that negotiating and entering such agreements does 

not deprive potentially responsible parties (PRPs) of due process. In these circumstances, 

we do not think it is appropriate to suggest that there are doubts about legal authority or 

due process by amending the guidance to specifically deny that EPA lacks legal authority 

or has denied PRPs due process. 

OIG response: 

We removed this recommendation from the final report because the Agency provided 

documentation on its authority to include the provisions. 

24 
If you have questions about OSWER/OECA’s response, please contact Ken Patterson in 

OSRE or Elizabeth Southerland in OSRTI. We look forward to continuing the discussion of 

your draft report with you. 

Attachments 

cc: 

Barry Breen, OSWER 

Lynn Buhl, OECA 

Mary Kay Lynch, OGC 

Earl Salo, OGC 

Susan Bromm, OSRE 

James Woolford, OSRTI 

25 
ATTACHMENT 1 

EPA/OIG Evaluation Draft Report: EPA Needs to Take More Action in Implementing 

Alternative Approaches to Superfund Cleanups (3/19/07) 

Rec 

# EPA/OIG Recommendation OSWER/OECA Response to 

Recommendation 

OIG Response 

2-1 Finalize and release a universe 

of SA sites that meets the SAS 

eligibility criteria. 

OSWER/OECA agrees with this 

recommendation, with a 

clarification. The SA universe is 

dynamic and any data or list of 

sites following the SA approach 

is just a snapshot. 

OSWER/OECA’s own internal 

evaluation of the SA approach 

closely examined available data 

on sites flagged in CERCLIS as 

SA. Our evaluation report – now 

in the final stages of review – will 

identify the number of sites 

actively using the SA approach 

(i.e., non-NPL sites with an 

agreement for RI/FS, RD, RA, or 

NTCRA finalized after the June 

2002 SAS Guidance was issued). 

Sites where the SA approach is 

being used may also have other 

approaches being used 

concurrently. OSWER/OECA 

will consider including this 

information in end-of-year 

reports. 

Agency partially agrees but does not 

commit to implementation; no 

milestone dates provided. 

The OIG is aware that the SA universe 

is “dynamic.” However, EPA has not 

committed to releasing site-specific 

information for each SA site (beyond a 

number total) nor provided milestone 

dates. That is the intent of the 

recommendation. We have revised the 

final recommendation accordingly. 

For the OIG to close this 

recommendation, in its response to the 

final report, EPA will need to: 

(1) Consider the revised 

recommendation. 

(2) Describe completed or planned 

actions to release site-specific 

information on all sites that meet the SA 

criteria, at that time. The site-specific 

information should include, as 

applicable, the same categories and 

fields of information contained in 

publicly accessible Superfund Site 

Progress Profiles. 

(3) Provide milestone dates for 

completion. 

2-2 

Develop and issue guidance for 

when to flag SA sites in 

CERCLIS. For final SA sites, 

the guidance should include 

provisions that state the SAS 

flag should not be removed 

even if the site is deleted, 

cleaned up, or proposed for the 

NPL, so that controls over 

OSWER/OECA agrees in part, 

and disagrees in part, with this 

recommendation. 

OSWER/OECA disagrees with 

OIG’s implicit suggestion that 

there is no current guidance for 

when to flag SA sites in 

CERCLIS. The Superfund 

Program Implementation Manual 

Agency partially agrees and partially 

disagrees; no milestone dates provided. 

The changes made to the SPIM for FY 

08/09, which is not effective until 

October 1, 2007, do not address the 

timing of the SA designation. We 

revised our final recommendation to 

ensure that the Agency updates the 

26 
Rec 

# EPA/OIG Recommendation OSWER/OECA Response to Recommendation 

OIG Response 

documentation of SAS are 

maintained. 

(SPIM) currently provides 

guidance for when to flag in 

CERCLIS sites using the SA 

approach. As appropriate, 

OSWER/OECA will update the 

SPIM when our internal SA 

evaluation is finalized. (For 

example, our evaluation report 

will recommend flagging specific 

SA agreements.) 

OSWER/OECA agrees with OIG 

that once the SA approach is used 

at a site (that is, EPA has entered 

an enforceable SA agreement 

with a potentially responsible 

party (PRP)), the SA flag (or an 

equivalent indicator) attached to 

that agreement should remain 

even if the site ultimately is 

cleaned up under an approach 

other than SA (e.g., the site is 

later listed on the NPL). 

SPIM to address the timing of the SA 

designation. 

EPA indicated its upcoming evaluation 

report will recommend flagging specific 

SA agreements and we revised the 

report to reflect this. We revised the 

final report to reflect that EPA’s 

guidance on SA sites does not include 

specific information on when to 

designate a site or agreement as SA. 

For the OIG to close this 

recommendation, in its response to the 

final report, EPA will need to: 

(1) Consider the revised 

recommendation. 

(2) Describe completed or planned 

actions to define the point in time and 

the criteria that need to be met for the 

SAS flag to be inserted in EPA’s 

Superfund Information System, i.e., 

when an agreement consistent with SAS 

guidance is signed. 

(3) Provide milestone dates for 

completion. 

2-3 Identify and communicate to 

the regions which of the HRS 

scoring methods are acceptable 

and reliable for designating a 

Superfund Alternative site, e.g. 

Quickscore. At minimum, the 

documentation should be 

verifiable. 

OSWER/OECA disagrees with 

this recommendation because we 

have already accomplished this. 

The Regions are responsible for 

ensuring the score is greater than 

or equal to 28.5 for a site being 

considered for the SA approach. 

OSWER has queried the Regions 

about how they score sites when 

deciding to use the SA approach 

at a particular site and how they 

document the scoring process for 

future references and verification. 

The Regions use the same scoring 

process to score sites using the 

SA approach as they use to 

prepare an HRS package for 

listing a site on the NPL – the 

HRS scoring process (and tools 

that facilitate this process). These 

requirements are described in 40 

Agency disagrees and will not 

implement. 

EPA has not implemented controls to 

prevent the use of potentially less 

reliable scoring methods by the regions. 

During its internal evaluation, OECA 

removed the SA designation from 13 

sites that did not score 28.5 or above 

and determined the removal was due to 

inconsistent regional scoring methods. 

(OSRE staff told us some of the 

methods regions used are more reliable 

than others.) According to the 

Agency’s guidance documents, these 

sites were to be “NPL equivalent” or 

were to score 28.5. 

In response to our discussion draft, 

Agency staff stated that “The score 

(while not necessarily exact prior to a 

27 
Rec 

# EPA/OIG Recommendation OSWER/OECA Response to Recommendation 

OIG Response 

CFR Part 300 Appendix A. In 

addition, 40 CFR Part 300 

Appendix A provides a set of 

score sheets to assist in 

appropriate site scoring. 

full package) is verifiable with the basic 

information that is fed into Quickscore, 

the pre-scoring tool supported by EPA 

OSRTI and primarily used by EPA 

regions today.” Furthermore, EPA 

promotes the use of Quickscore for use 

by PRPs in response to recommendation 

4-1. We revised the recommendation to 

read “Establish and direct regions to use 

a consistent HRS scoring method that is 

acceptable and reliable for designating a 

Superfund Alternative site. At 

minimum, documentation on the score 

should be verifiable.” 

For the OIG to close this 

recommendation, in its response to the 

final report, EPA will need to: 

(1) Consider the revised 

recommendation. 

(2) Describe completed or planned 

actions to specify a consistent scoring 

method with verifiable documentation 

that will result in regional HRS scores 

that are acceptable and reliable for 

designating a SA site. The method 

should be the same as that which can be 

used by PRPs to verify HRS scores. 

(3) Provide milestone dates for 

completion. 

3-1 Track and report all Superfund 

GPRA measures at SA sites. 

This includes construction 

completions, final remedy 

selection, human exposure 

under control, and site-wide 

ready-for-reuse. Report GPRA 

measures at SA sites separately 

from GPRA measures at NPL 

sites. 

OSWER/OECA generally agrees 

with this recommendation, with 

certain clarifications. Currently, 

the only Superfund GPRA 

measure that includes sites with 

SA agreements is the measure for 

Final Assessment Decisions 

(FADs). (Note that “final remedy 

selection” is no longer a GPRA 

measure.) The current GPRA 

measures that do not include SA 

sites are “Human Health Under 

Control,” “Ground Water 

Migration Under Control,” 

“Sitewide Ready for Anticipated 

Use,” and “Construction 

Completions.” On an operable 

Agency generally agrees but does not 

commit to implementation; no 

milestone dates provided. 

The Agency is incorrect that “final 

remedy selection is no longer a GPRA 

measure.” The SPIM for FY 06/07 

(dated November 6, 2006, Appendix G, 

page G-2) states: 

“In FY 2007, the Superfund Remedial 

Program will measure its progress in 

achieving environmental results through 

six key strategic targets. These six 

strategic targets include: (1) performing 

site assessments and making final 

assessment decisions, (2) selecting final 

28 
Rec 

# EPA/OIG Recommendation OSWER/OECA Response to Recommendation 

OIG Response 

unit (OU) basis, information on 

SA sites is gathered as part of a 

new, larger “Ready for 

Anticipated Use (RAU)” measure 

that is not a GPRA measure. 

OSWER will examine the pros 

and cons and the 

difficulty/resource intensiveness 

of tracking SA sites under 

additional GPRA measures. Such 

tracking may become easier once 

OSWER/OECA issues its 

evaluation report and clarifies 

expectations for flagging SA 

agreements in CERCLIS. 

In the meantime, OECA will 

continue tracking and reporting 

GPRA enforcement measures at 

sites using the SA approach, and 

OSWER/OECA also can track 

and report GPRA measures at 

sites with SA agreements using 

an ad-hoc, end-of-the-year report. 

remedies designed to clean up 

contamination to risk levels that are 

protective of human health and the 

environment and appropriate for 

reasonably anticipated future land use, 

(3) completing construction of the 

selected remedies, (4) protecting the 

public from the health effects of 

exposure to contamination, (5) 

controlling the migration of 

contaminated groundwater, and (6) 

achieving the designation “Sitewide 

Ready for Reuse” at construction 

complete NPL sites. Each strategic 

target represents an important milestone 

in achieving risk reduction; no one 

measure can itself adequately capture 

the total environmental benefits derived 

from the Superfund program. Strategic 

targets (1) and (3), above, have been in 

place for several years. Strategic target 

(2) was implemented for the first time in 

FY 2004 and will be phased out 

beginning in FY 2008. Strategic target 

(6) is new for FY 2007.” [emphasis 

added] 

The SPIM can be found at 

http://www.epa.gov/superfund/action/pr 

ocess/spim06.htm . 

In its response, EPA has not committed 

to tracking and reporting all Superfund 

GPRA measures at SA sites. For OIG 

to close this recommendation, in its 

response to the final report, EPA will 

need to (1) Reconsider the 

recommendation and (2) Provide 

specific planned actions and milestone 

dates for completion. 

3-2 Revise applicable guidance, 

manuals, or directives to reflect 

that these performance 

measures will be tracked and 

reported for SA sites. 

OSWER/OECA disagrees with 

this recommendation but suggests 

an alternate action. As 

appropriate, OSWER/OECA will 

consider the need to revise 

applicable guidance, manuals, or 

directives once our own SA 

evaluation is complete. The 

Agency disagrees but offers to study 

alternatives with no commitment to 

implement; no milestone dates 

provided. 

When EPA implements GPRA 

measures for SA sites (i.e., OIG 

recommendation 3-1), it will have to 

29 
Rec 

# EPA/OIG Recommendation OSWER/OECA Response to Recommendation 

OIG Response 

Superfund Program 

Implementation Manual (SPIM) 

currently provides guidance for 

when to flag in CERCLIS sites 

using the SA approach. As 

appropriate, OSWER/OECA will 

update the SPIM when our 

internal SA evaluation is 

finalized. At this time, 

OSWER/OECA does not see a 

need to update other documents. 

OSWER/OECA also will 

consider the most appropriate 

way to educate Regions on the 

necessary data input for sites with 

SA agreements so that these sites 

can be tracked in the ad hoc, endof-year report described in our 

response to draft 

Recommendation 3-1. 

update some Agency guidance and 

manuals to reflect new tracking 

measures. Therefore, for the OIG to 

close this recommendation, in its 

response to the final report, EPA will 

need to (1) Reconsider the 

recommendation and (2) Provide 

specific planned actions and milestone 

dates for completion. 

4-1 Determine what site assessment 

and SAS HRS scores regions 

can share with PRPs during SA 

site negotiations. 

OSWER/OECA disagrees with 

this recommendation because the 

end goal of the recommendation 

has been accomplished. The 

Regions can, and do provide 

appropriate site information to 

PRPs. 

At sites proposed to the NPL, but 

currently using the SA approach, 

EPA Regions provide HRS 

scores, and PRPs can obtain HRS 

documentation from the EPA 

docket. 

Prior to proposing a site to the 

NPL, HRS scores are predecisional and, therefore, 

consistent with EPA policy, not 

releasable. Therefore, at sites 

using the SA approach that have 

not been proposed to the NPL, 

Regions can provide PRPs with 

site assessment reports, such as 

the PA, SI, and ESI reports. Data 

from these reports can be input 

Agency partially disagrees, 

recommendation revised. 

We recognize EPA’s policy that HRS 

scores are pre-decisional and not 

releasable. However, EPA states 

“...Regions can provide PRPs with site 

assessment reports, such as the PA, SI, 

and ESI reports.” This response 

indicates that other site assessment 

information can be made available to 

PRPs. We have revised the 

recommendation based on this response. 

For the OIG to close this 

recommendation, in its response to the 

final report, EPA will need to (1) 

Consider the revised recommendation 

and (2) Provide specific planned actions 

and milestone dates for completion. 

30 
Rec 

# EPA/OIG Recommendation OSWER/OECA Response to Recommendation 

OIG Response 

into “Quick Score” (developed by 

EPA and available on the 

internet) to calculate a 

preliminary HRS score. 

4-2 Revise the SAS guidance and 

SAS general notice letter, as 

appropriate, to include specific 

details about how site 

assessment information should 

be shared with PRPs during SA 

site negotiations. 

OSWER/OECA generally agrees 

with this recommendation. 

OSWER/OECA is committed to 

developing ways to improve the 

transparency of the SA approach 

and will revise the sample general 

notice letter to include more 

specific information about site 

assessment information. 

OSWER/OECA’s forthcoming 

evaluation report will clarify that, 

at sites using the SA approach, 

Regions can provide PRPs with 

site assessment reports, such as 

the PA, SI, and ESI reports. (As 

discussed above in reference to 

Recommendation 4-1, a PRP can 

calculate the HRS score for a site 

using data from these reports.) 

Moreover, OSWER/OECA 

intends to continue educating 

EPA Regions about 

implementation of the SA 

approach, including appropriate 

communications with PRPs. 

Agency partially agrees to implement 

recommendation; no milestone dates 

provided. 

EPA has agreed to implement the 

recommendation by revising the sample 

general notice letter. Because the 

sample general notice letter is a 

companion to the current SAS 

guidance, we removed the 

recommendation to revise the SAS 

guidance. In order to increase 

transparency of the SA approach, we 

also revised the recommendation to 

require that the general notice letter 

include references to the complete list 

of site assessment information PRPs can 

have. 

For the OIG to close this 

recommendation, in its response to the 

final report, EPA will need to provide 

specific planned actions and milestone 

dates for completion. 

4-3 Revise the SAS guidance and 

the SAS special notice letter, as 

appropriate, to include language 

from an EPA legal opinion that 

states EPA has the authority to 

include each of the four 

provisions (community 

involvement, financial 

assurance, NRD claims, and 

NPL listing) in SAS 

agreements. The opinion 

should include a statement that 

no due process violations are 

associated with these 

provisions. 

OSWER/OECA disagrees with 

this recommendation. See 

Supplemental Response. 

See response below. 

31 
Rec 

# EPA/OIG Recommendation OSWER/OECA Response to Recommendation 

OIG Response 

5-1 Develop, and release to the 

public, a communication and 

outreach strategy, to include 

information on how a site 

becomes an SA site, the 

benefits of the SAS approach, 

and SA site progress profiles. 

OSWER/OECA generally agrees 

with this recommendation. 

OSWER/OECA is committed to 

improving the transparency of the 

SA approach and is already 

developing communication tools 

to share such information with 

stakeholders. We will consider 

the need to develop a 

communication and outreach 

strategy, or other public education 

documents or methods, specific to 

the SA approach. 

Agency agrees, but does not commit to 

implement; no milestone dates 

provided. 

EPA did not commit to implementing 

the recommendation. For the OIG to 

close this recommendation, in its 

response to the final report, EPA will 

need to reconsider the recommendation, 

which includes agreement to do the 

following: 

(1) Preparing and releasing to the 

public, SA site progress profiles. 

(2) A public explanation of the benefits 

of the SA approach. 

(3) Information on how a site becomes 

an SA site. 

(4) Provide milestone dates for 

completion. 

5-2 Direct regions to discontinue 

the use of terms such as NPL 

caliber and NPL equivalent to 

describe the status of SA sites, 

or the SAS approach. 

OSWER/OECA agrees with this 

recommendation to use consistent 

terminology. As we understand 

OIG’s concern, some Regions 

refer to sites following the SA 

approach as “NPL caliber” or 

“NPL equivalent.” 

OSWER/OECA agrees to address 

this issue as part of its efforts to 

improve consistency and 

transparency. As described above 

in our comment on 

Recommendation 4-2, 

OSWER/OECA intends to 

continue educating EPA Regions 

about implementation of the SA 

approach, including appropriate 

communications with PRPs. 

Agency agrees, but did not provide 

specific actions or milestone dates for 

implementation. 

For the OIG to close this 

recommendation, in its response to the 

final report, EPA will need to (1) 

Reconsider the recommendation and (2) 

Provide specific planned actions on how 

it will “educate Regions” and provide 

milestone dates for completion. 

5-3 Finalize, and release to the 

public, the TAP guidance for 

SA sites (as appropriate, after 

OSWER and OECA address 

recommendation 4-3). 

OSWER/OECA agrees with this 

recommendation. We anticipate 

issuing this guidance by the end 

of this fiscal year. 

Agency agrees and provided a 

milestone date. 

32 
SUPPLEMENTAL RESPONSE ON RECOMMENDATION 4-3

OIG 3/19/07 Draft Recommendation 4-3: Revise the SAS guidance and the SAS general notice 

letter, as appropriate, to include language from an EPA legal opinion that states EPA has the 

authority to include each of the four provisions (community involvement, financial assurance, 

NRD claims, and NPL listing) in SAS agreements. The opinion should include a statement that 

no due process violations are associated with these provisions. 

OSWER/OECA disagrees with this recommendation. 

EPA’s principal authority for administrative agreements and consent decrees is CERCLA §122, 

which gives EPA very broad authority to enter into settlements that are in the public interest. 

OECA has developed model language and documents (including the four SA provisions) with 

the advice of Office of General Counsel (OGC) and in consultation with the U.S. Department of 

Justice (DOJ). This process with OGC and DOJ is intended to assure that the actions proposed 

in the guidance are within our legal authority. OGC has reviewed OIG’s draft report, and 

continues to advise us that EPA has the legal authority to enter into agreements that include the 

SA provisions and that negotiating and entering such agreements does not deprive potentially 

responsible parties (PRPs) of due process. In these circumstances, we do not think it is 

appropriate to suggest that there are doubts about legal authority or due process, by amending the 

guidance. 

When EPA has PRPs clean up sites, it starts negotiations using standardized model agreements 

to help ensure that public health and the environment are protected. OGC and DOJ review and 

concur on the model language and documents. As discussed in the 2004 Revised SAS Guidance, 

the four model SA provisions are narrowly drawn and intended to put EPA, the community, and 

natural resource trustees in equivalent positions to their positions at NPL sites. 

Following is an explanation of each SA provision and how it ensures equivalent protections for 

sites using the SA approach as for sites listed on the NPL. 

• Technical Assistance Plan (TAP) provision. At sites proposed to or listed on the NPL, 

Technical Assistance Grants (TAGs) are available to qualified community groups to 

allow them access to independent technical assistance. Generally, TAG funds are used 

by the community groups to hire a technical advisor who can then help them understand 

the cleanup at the site. The TAP provision in SA agreements gives community groups 

the same opportunity to have independent technical assistance. Because TAGs are not 

awarded at every NPL site, the model TAP provision is contingent on demonstrated 

community interest, and the PRP has no TAP responsibilities until a qualified community 

group comes forward. This provision can be omitted if the site is already proposed for 

listing on the NPL or if an alternative source of independent technical assistance is 

available to the community. 

• Financial Assurance. EPA requests that PRPs agree to provide financial assurance in 

consent decrees at NPL-sites and at sites using the SA approach for the estimated costs of 

the RA. Because of limitations on accessing the Trust Fund at sites not listed on the 

NPL, Regions request that PRPs provide some amount of that financial assurance through 

a liquid instrument(s). Generally, the amount of liquid financial assurance should be 

33 
equal to the costs that would be needed to keep cleanup work going through the listing 

process. The SA financial assurance provision does not ask for any additional financial 

assurance – it asks for a part of the standard financial assurance to be established in an 

immediately accessible form. 

• “Agreement not to challenge listing” provision. This provision puts EPA in the same 

position as if the site has been proposed to the NPL, as the site would be proposed based 

on conditions prior to the PRPs beginning work. With this provision, PRPs agree not to 

challenge the listing of the site based on changed site conditions due to partial cleanup. 

This puts EPA in an equivalent position to a site already listed on the NPL if a PRP does 

just enough work so that the site will no longer score high enough for listing, and then 

stops work. In that scenario, a PRP that has agreed to this provision cannot challenge 

EPA’s listing the site on the NPL based on having performed a partial cleanup. This 

provision is quite narrowly drawn; a PRP retains their right to challenge the listing on 

other grounds. This provision is not needed at sites already proposed for listing on the 

NPL. 

• Natural Resources Damages provision. This provision protects Federal Trustee interests 

to the same degree these interests are protected at NPL sites. The provision clarifies that 

the applicable statute of limitations is CERCLA Section 113(g)(1), which is the 

applicable statute of limitations for NPL sites or facilities at which an RA is scheduled. 

EPA anticipates an RA will be performed at sites using the SA approach. This provision 

can be omitted when DOJ agrees (on behalf of the trustees) that there are no natural 

resource damage issues at stake at a site. 

The SA approach is appropriate at sites where PRPs are able and willing to perform the 

necessary cleanup. PRPs may choose not to enter into any agreement with EPA if they do not 

like the terms of the agreement. Just as with other settlement negotiations, PRPs can assert that a 

provision is not necessary or appropriate for a specific site. As set forth in the Revised SAS 

Guidance, EPA regions may omit or modify SA provisions with approval from OSWER/OECA 

and/or DOJ. Indeed, OSWER/OECA has approved such requests from EPA regions when 

omission or revision of the SA provisions is appropriate based on specific site circumstances. 

Notably, similar negotiation issues arise at many Superfund sites, not just those using the SA 

approach. In settlement negotiations, all parties have the ability to make their needs known and 

understood and to elect to accept or reject the stated needs of the other parties. Negotiating 

parties may decide it is in their best interest to accept a provision that they do not like in order to 

reach settlement; this situation occurs on both sides of the table. Ultimately, EPA cannot force 

negotiating parties to sign a settlement agreement. 

OIG response: 

We removed this recommendation from the final report because the Agency provided 

documentation on its authority to include the provisions. 

34 
ATTACHMENT 2 

OIG Evaluation Draft Report: EPA Needs to Take More Action in Implementing 

Alternative Approaches to Superfund Cleanups (3/19/07) 

Detailed Comments Not Tied to Particular Recommendations 

At a Glance 

• OSWER/OECA typically references the “SA approach” rather than the “SAS approach.” 

We feel this distinction recognizes that use of the SA approach may not define a site; 

there may be more than one approach being used at a site. 

• Here, and in other places in the draft report, OIG discusses the need to “finalize the 

universe of [SA] sites.” We suggest that more accurate wording would either be to 

“finalize the criteria for flagging in CERCLIS a site using the SA approach.” The SA 

“universe” will be dynamic. 

OIG response: 

The OIG is aware that the universe may be dynamic. The issue of flagging sites in 

CERCLIS is different than EPA deciding and finally releasing the list of “dynamic” SA 

sites. No change made to report. 

• We recognize that OIG has spoken with external parties recently about their views on the 

SA approach. However, references to comments made by internal and external parties in 

2004 (e.g., the 120 Day Study, the NACEPT Subcommittee report) no longer seem 

“recent” to us. 

OIG response: 

The OIG disagrees. Within the last year, many of the same concerns external parties 

made during the 120-Day Study were also communicated to us. We are unaware that the 

external parties have rescinded their prior comments. No changes made to report. 

• In the sidebar and under the heading “What We Found,” OIG characterizes external 

parties as “report[ing] problems” with the SA approach. OSWER/OECA suggests it 

would be more accurate to say that the external parties “raised questions or concerns.” 

Chapter 1 

• The SA approach is used at sites where PRPs are viable and willing to enter into 

agreements. (See second bullet on page 2.) 

OIG response: 

Report revised to include: “viable and agreeable PRPs” as the 2004 Revised SAS 

guidance indicates. 

35 
• There is no one type of agreement that would include all four SA provisions. Therefore, 

it may be more accurate to say “agreements that contain one or more of the following 

provisions.” (See fourth bullet on page 2.) 

OIG response: 

Report revised to state “Sites with agreements that contain one or more of the following 

provisions.” 

• In describing the Natural Resource Damages (NRD) provision, it may be more accurate 

to say “an agreement of the applicable statute of limitations” for NRD claims. 

OIG response: 

Report revised to state “An agreement of the applicable statute of limitations for Natural 

Resource Damages (NRD) claims.” 

• In the first full paragraph on page 3, and throughout the report, OIG refers to OECA as 

the lead on the SA approach, with OSWER providing support. As noted in our general 

comments, OSRE and OSRTI share responsibilities for implementing the SA approach 

and ask that this partnership be accurately reflected. 

Chapter 2 

• We appreciate that OIG now generally refers to the SA “approach” rather than 

“program.” However, in several places, OIG still suggests that the SA “program” is not 

being managed appropriately. The SA approach is not a program, just one alternative 

available for cleaning up a Superfund site. 

OIG response: 

The OIG acknowledges the Agency’s position. However, by considering these activities as 

a program better ensures that the Agency will implement appropriate management controls 

to protect against fraud waste and abuse. We revised the sentence to read “EPA lacks 

reliable management information because it has not managed this approach with the 

necessary controls required to achieve desired outcomes.” 

• On page 4, OIG states that “[d]uring its internal review, OECA discovered that many SA 

sites initially designated by regions do not score 28.5 or higher.” OSWER/OECA 

believes that this statement needs additional context to be accurate. As you know, our 

internal review included a QA/QC of CERCLIS data on sites following the SA approach. 

We found that there were a number of sites where the SA flag should be removed. There 

were many reasons why these sites should not be flagged “SA”: some were proposed for 

36 
listing on the NPL and not following the SA approach; some were going to be addressed 

by the state; some were removal-only sites; and some did not score 28.5 or higher. 

OIG response: 

We made no change to the report. This statement refers to 13 sites EPA initially 

designated as SA sites that were later removed from the list of SA sites because they did 

not score 28.5 or higher. We recognize there are other reasons that EPA removed the SA 

designation from other sites, but this comment is not relevant to the discussion in Chapter 

2. 

Chapter 3 

• Table 3-1 needs to be updated to reflect current GPRA measures. For example, “Final 

Remedy Selection” is no longer an OSWER GPRA measure. 

Chapter 4 

• The OIG references feedback from its discussions with NAM. We request that the report 

reflect that NAM has not met with OSWER/OECA on this topic. 

Appendix D 

• OSWER/OECA appreciates the effort to include more detail about its discussions with 

external parties and asks OIG to consider moving some or all of this discussion into 

Chapter 4 because it reflects some positive feedback on the SA approach from external 

parties. 

• OSWER/OECA suggests OIG remove the last sentence referencing the Supreme Court 

ruling in Cooper Industries, Inc. v. Aviall Services, Inc. Aviall-related issues are not 

unique to sites using the SA approach. 

37 
Appendix F 

Distribution 

Office of the Administrator 

Assistant Administrator, OSWER 

Assistant Administrator, OECA 

Principal Deputy Assistant Administrator, OSWER 

Principal Deputy Assistant Administrator, OECA 

Deputy Assistant Administrator, OECA 

Agency Followup Official (the CFO) 

Agency Followup Coordinator 

Director, Office of Site Remediation Enforcement, OECA 

Deputy Director, Office of Site Remediation Enforcement, OECA 

Deputy Assistant Administrator, Office of Air and Radiation 

Director, OSRTI, OSWER 

Director, Assessment and Remediation Division, OSRTI, OSWER 

Office of General Counsel 

Assistant General Counsel (CERCLA), Solid Waste & Emergency Response 

Law Office, OGC 

Director, Regional Support Division, OECA 

Deputy Division Director, RSD, OECA 

Assistant Branch Chief, State and Tribal Site Identification Branch, OSWER 

Associate Administrator for Congressional and Intergovernmental Relations 

Associate Administrator for Public Affairs 

OSWER Audit Followup Coordinator 

OECA Audit Followup Coordinator 

Acting Inspector General 

38