[Federal Register Volume 62, Number 20 (Thursday, January 30, 1997)]
[Notices]
[Pages 4624-4630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2192]


      

[[Page 4623]]

_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



Comfort/Status Letters Issuance Policy; Notice

Federal Register / Vol. 62, No. 20 / Thursday, January 30, 1997 / 
Notices

[[Page 4624]]



ENVIRONMENTAL PROTECTION AGENCY

[FRL-5681-1]


Policy on the Issuance of Comfort/Status Letters

I. Introduction

    The Environmental Protection Agency (``EPA'' or ``Agency'') defines 
brownfields as abandoned, idled, or under-used industrial and 
commercial facilities where expansion or redevelopment is complicated 
by real or perceived environmental contamination. A party interested in 
brownfield property (``properties'' or ``sites'') is concerned 
primarily with whether or not the property has environmental 
contamination, and if it does, what are the potential associated 
liabilities and costs of cleaning up existing contamination. Equipped 
with this information, a party can make an informed decision regarding 
the purchase and/or development of the brownfield property.
    EPA hopes to provide a measure of ``comfort'' by helping an 
interested party to better understand the potential for or actual EPA 
involvement at a brownfield property. This policy describes the most 
common situations about which parties inquire and the type of 
information or comfort EPA may provide to parties to assist them in 
assessing the probability of incurring liability under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(``CERCLA'' or ``Superfund''). It is not EPA's intention to become 
involved in typical private real estate transactions. Rather, EPA 
intends to limit the use of such comfort to where it may facilitate the 
cleanup and redevelopment of brownfields, where there is the realistic 
perception or probability of incurring Superfund liability, and where 
there is no other mechanism available to adequately address the party's 
concerns. The policy contains four sample comfort/status letters which 
address the most common inquiries for information that EPA receives 
regarding contaminated or potentially contaminated properties.

II. Background

    On January 25, 1995, EPA announced its Brownfields Action Agenda 
which outlined the Agency's activities and plans to encourage and 
facilitate the cleanup and reuse of brownfields. As part of this 
Agenda, the Office of Site Remediation Enforcement (``OSRE'') focused 
on the identification of barriers to cleanup and reuse posed by federal 
environmental liability. In particular, OSRE concentrated its efforts 
on the liability barriers posed by Superfund's requirements to 
identify, assess, and cleanup the nation's high priority hazardous 
waste sites.
    Uncertainty about potential contamination and/or Superfund 
liability may prevent otherwise interested parties from purchasing or 
redeveloping brownfields. To allay the fear of potential federal 
pursuit of parties for cleanup of brownfields, EPA may provide varying 
degrees of comfort by communicating EPA's intentions toward a 
particular piece of property. Comfort may range from a formal legal 
agreement containing a covenant not to sue which releases a party from 
liability for cleanup of existing contamination to Agency policy 
statements regarding the exercise of EPA's enforcement discretion as it 
relates to specific site circumstances or activities of a party.

III. Policy Statement

    This policy is designed primarily to assist parties who seek to 
cleanup and reuse brownfields. EPA headquarters and regional offices 
often receive requests from parties for some level of comfort that if 
they purchase, develop, or operate on brownfield property, EPA will not 
pursue them for the costs to clean up any contamination resulting from 
the previous use.<SUP>1 EPA believes that the majority of the concerns 
raised by these parties can be addressed through the dissemination of 
information known by EPA about a specific property and an explanation 
of what the information means to EPA. While the sample comfort/status 
letters do not account for every possible situation, EPA believes that 
the letters contained in this policy will address the most common 
requests for comfort. Facts and circumstances, however, will vary and 
information may be disseminated through different means including other 
written communication, public or individual meetings, or reference to 
public information repositories and EPA databases.
---------------------------------------------------------------------------

    \1\ The terms ``purchase'' and ``operate'' also may refer to 
lessees.
---------------------------------------------------------------------------

    Comfort/status letters are provided solely for informational 
purposes and relate only to EPA's intent to exercise its response and 
enforcement authorities under Superfund at a property based upon the 
information presently known to EPA. EPA encourages the release of as 
much information as possible to enable the party to better understand 
the potential applicability of CERCLA to individual parcels of property 
and make informed decisions. For example, EPA may need to take 
Superfund action at the property if conditions at the property change, 
or if new information becomes available indicating that present 
conditions warrant a Superfund response. With the exception of sharing 
information already contained in EPA's files, the letters generally are 
not intended to express EPA's opinion as to possible contamination or 
extent of contamination at the property or provide any information on 
obligations associated with ownership or operation of the site. 
Additionally, the letters are not intended to limit or affect EPA's 
authority under CERCLA or any other law or provide a release from 
CERCLA liability.
    Upon receiving a request from an interested party for information 
about their circumstances, regional offices may issue comfort/status 
letters, at their discretion, when there is a realistic perception or 
probability of incurring Superfund liability and such comfort will 
facilitate the cleanup and redevelopment of a brownfield property, and 
there is no other mechanism available to adequately address the party's 
concerns. EPA believes that these comfort/status letters are not 
necessary or appropriate for typical real estate transactions. With the 
information provided by EPA, the party inquiring about the property can 
decide whether the risk of EPA action is enough to forego involvement, 
whether to proceed as planned, whether additional investigation into 
site conditions is necessary, or whether further information from EPA 
or other agencies is needed. This policy is not intended to supersede 
EPA's ``Policy Against No Action Assurances.'' <SUP>2 Because these 
letters do not provide assurance of no action, approval of the 
Assistant Administrator of the Office of Enforcement and Compliance 
Assurance is not required.
---------------------------------------------------------------------------

    \2\ The Agency's ``Policy Against No Action Assurances'' issued 
November 16, 1984, reaffirms EPA's policy against giving definitive 
assurances outside the context of a formal enforcement proceeding 
that EPA will not proceed with a particular enforcement response. 
Consistent with that policy, EPA may only provide site-specific, no 
action assurances with the approval of the Assistant Administrator 
of the Office of Enforcement and Compliance Assurance.
---------------------------------------------------------------------------

    EPA has developed four sample comfort/status letters to address the 
most common inquiries received regarding brownfield properties. The 
letters are structured with opening and closing paragraphs applicable 
to all scenarios falling under that category of letter. Regions may 
then choose and combine the applicable substantive paragraphs to tailor 
the sample letter to address a party's particular request.

[[Page 4625]]

Directions also are found within the description of the letters and 
within the body of each letter. A brief summary of the sample letters 
is found below.
    <bullet> 1) A ``No Previous Federal Superfund Interest Letter'' may 
be provided to parties when there is no historical evidence of federal 
Superfund program involvement with the property/site in question (i.e., 
site is not found in the CERCLA information system database, also known 
as the Comprehensive Environmental Response, Compensation, and 
Liability Information System or ``CERCLIS'');
    <bullet> 2) A ``No Current Federal Superfund Interest Letter'' may 
be provided when the property/site either has been archived and is no 
longer part of the CERCLIS inventory of sites, has been deleted from 
the National Priorities List (``NPL''), or is situated near, but not 
within, the defined boundaries of a CERCLIS site;
    <bullet> 3) A ``Federal Interest Letter'' may be provided at sites 
where EPA either plans to respond in some manner or already is 
responding at the site. This letter is intended to inform the recipient 
of the status of EPA's involvement at the property. Additionally, 
language is included to respond to requests regarding the applicability 
of Agency Superfund policy, regulation or CERCLA statutory provision to 
a party or particular set of circumstances; and,
    <bullet> 4) A ``State Action Letter'' may be provided when the 
state has the lead for day-to-day activities and oversight of a 
response action (e.g., deferred sites.)
    Sample letters are appended to this policy as Appendix A. The 
relationship between the sample letters is depicted in the table in 
Appendix B. Regions are encouraged to tailor the letters to fit region-
specific protocols or site-specific conditions.

IV. Sample Comfort/Status Letters

<bullet> No Previous Superfund Interest Letter

    This letter introduces and explains the purpose of CERCLIS and may 
be sent when the property described by the interested party is not 
located in active or archived CERCLIS records. The purpose of the 
letter is to inform the recipient that, to the best of EPA's knowledge, 
the property described in the request has never been addressed under 
EPA's Superfund program, nor are there current plans to do so. Regions, 
generally, should not interpret a request for a No Previous Superfund 
Interest Letter as notification that the site should be entered into 
CERCLIS.
    Because EPA does not have any information about the property, the 
letter does not express any opinion as to possible contamination at the 
property or appropriate usage of the property. Additionally, EPA is not 
in a position to determine what obligations are associated with 
ownership or operation of the property under any present or future 
environmental or other federal, state or local statute, regulation or 
principle of common law. The interested party is encouraged to contact 
the appropriate state agency for further information regarding the 
state's intention toward the property. Regions are encouraged to check 
with other program offices to determine whether any enforcement action 
is planned or ongoing and, if so, coordinate within their region before 
deciding how and when to respond to the inquiry.

<bullet> No Current Superfund Interest Letter

    The No Current Superfund Interest Letter is intended for properties 
a) that have been archived and removed from the CERCLIS inventory of 
Superfund sites; b) where either all or part of the NPL site has been 
deleted following EPA's deletion policies (``Deletion from the NPL'' 40 
CFR 300.425(e) or ``Partial Deletion of Sites Listed on the National 
Priorities List'' published in the Federal Register on November 1, 
1995, 60 FR 55466); or, c) situated in the vicinity of but currently 
not considered part of the CERCLIS site (e.g., is adjacent to the 
site). The purpose of the letter is to let the recipient know that 
EPA's Superfund program does not anticipate taking any/additional 
response action (which could include enforcement action if the 
Potentially Responsible Party (``PRP'') search and/or cost recovery has 
been completed), and the basis for its decision. The letter also refers 
the party to additional sources of information such as EPA's 
administrative record and the appropriate state agency.
    The No Current Superfund Interest Letter is divided into three 
sections. Section I addresses archived properties and describes the 
conditions under which EPA archives a site, EPA's policy towards these 
sites, and the circumstances under which EPA would revisit an archived 
site. EPA archives a site when the site assessment event, removal 
event, or enforcement activity has been completed. EPA will archive a 
site if a) no contamination was found at the site; b) the site, while 
contaminated, neither met the criteria for inclusion on the NPL nor 
required any EPA response action; or, c) contamination was removed 
quickly without the need to place the site on the NPL; and d) EPA has 
completed its cost recovery action for the site. CERCLIS is updated to 
reflect the archiving of the property. Regions should select one of the 
appropriate reasons, as described here and in the sample letter, for 
the decision to archive the property and add it to the opening and 
closing paragraphs (see letter for additional instructions.) This 
section of the letter provides comfort by conveying that EPA's 
expectation, based upon current information, is not to take further 
steps to list the site on the NPL or to take any other CERCLA response 
action.
    Section II of the letter focuses on sites deleted from the NPL and 
properties located in the vicinity of a CERCLIS site. Paragraphs (a) 
and (b) of Section II addresses inquiries regarding full or partial 
deletions of NPL sites and is appropriate if 1) the portion of the 
Superfund site is marked for deletion in CERCLIS and the state concurs 
with EPA's decision to delete the portion of the site or 2) after 
consultation with the state and a thirty day public comment period, the 
entire site is marked for deletion in CERCLIS. (Refer to the sample 
letter for specific directions). A site or portion of a site is deleted 
from the NPL when ``no further response is appropriate'' (see 40 CFR 
300.425(e)). No further response is appropriate when responsible 
parties or EPA has completed all response actions, or when a remedial 
investigation shows ``no significant threat.'' Either EPA or a petition 
from any person may initiate the deletion process.
    Paragraph (c) of Section II addresses a property that is in the 
vicinity of a CERCLIS site but currently is not affected by the release 
of hazardous substances (e.g., a site may be known as the Jones 
Industrial Park but the release affects only a portion of the 
industrial park property). Paragraph (c) is appropriate when EPA has 
sufficient information regarding the level and extent of contamination 
at a site to determine that the property is not part of the release. 
When a site is listed in CERCLIS, EPA generally delineates the release 
of hazardous substances as a geographical area and defines the site by 
reference to that area. Thus, the actual release is not limited to that 
property but either may extend beyond the property due to contaminant 
migration or may not occupy the full extent of the property.
    Section III provides language when EPA has compiled an 
Administrative Record for the site. If the regional office has compiled 
an Administrative Record for the site, please add Section III to any of 
the above-mentioned scenarios.
    Under the situations addressed in this letter, EPA is not in a 
position to provide any opinion on the appropriate use of the property 
or obligations

[[Page 4626]]

associated with ownership or operation of the property under any 
present or future environmental or other federal law or regulation or 
principle of common law. The letter recommends that the interested 
party to contact the appropriate state agency for further information 
regarding the state's intention toward the property. Before sending 
this letter, regions are encouraged to check with other program offices 
to determine whether any enforcement action is planned or ongoing and, 
if so, coordinate with the appropriate regional program offices before 
deciding how and when to respond to the inquiry.

<bullet> Federal Superfund Interest Letter

    When a site is in the Superfund evaluation or response phase, the 
most important assistance EPA can provide an interested party may be 
information about current Superfund activities. When the site is found 
in CERCLIS site inventory, a regional office may issue a Federal 
Interest Letter to explain what actions have been taken by EPA toward 
the remediation of a particular site (e.g., site sampling, removal 
action). The letter also may indicate whether EPA anticipates further 
action at a site and the type of action anticipated. In addition to the 
opening paragraph, there are four parts to the Federal Interest Letter. 
Section I of the letter provides the recipient with the status of the 
property--whether the property is or may be part of CERCLIS/NPL site. 
Section II describes EPA's planned or ongoing activities (e.g., 
preliminary assessment, removal, or remedial design). Federal Interest 
Letters may be considered for sites in the CERCLIS site inventory, 
including those on the NPL or eligible for the NPL, sites undergoing a 
federal EPA removal action, undergoing federal EPA remedial action, or 
where EPA has incurred or will incur response costs.
    Section III of the Federal Interest Letter provides language 
regarding the application of an EPA Superfund policy, CERCLA statutory 
provision or regulation to a party's particular set of circumstances. 
As stated in the policy and of particular importance to Section III of 
the Federal Interest Letter is the limitation on issuing comfort/status 
letters to situations where the requesting party provides information 
showing that 1) a project found to be in the public interest (e.g., an 
economic redevelopment project) is hindered or the value of a property 
is affected by the potential for Superfund liability, and 2) there is 
no other mechanism available to adequately address the party's concerns 
other than a letter from EPA with a statement regarding the 
applicability of a specific Superfund policy, statutory provision or 
regulation. These criteria should be met before a region considers 
sending the party a Federal Interest Letter. In response to such 
requests, regions should evaluate the information provided and respond, 
as appropriate, with Section III of the Federal Interest Letter 
attaching a copy of the relevant policy or statutory/regulatory 
language to the letter.
    Section IV provides language for the closing paragraph appropriate 
for all sections of the letter. This section of the letter also 
encourages the region to include pertinent fact sheets (or any other 
relevant information) and refers the party to the administrative record 
repository.

<bullet> State Action Letter

    The State Action Letter is intended to provide comfort at sites 
where EPA may have either no current Superfund involvement or a 
secondary role under the state's (or territory, commonwealth or tribe) 
lead of site activities. A state may participate in such activities as 
lead agency through a cooperative agreement (``CA'') between the state 
and region. A state and region also may develop a Memorandum of 
Agreement (``MOA'') in which the region and the state articulate the 
roles each will have regarding the cleanup of contaminated properties.
    The State Action Letter seeks to advise parties that EPA does not 
intend to take federal action under CERCLA when the state has the 
primary role of overseeing cleanups pursuant to either state or federal 
requirements and, where appropriate, the parties performing the cleanup 
are working cooperatively under state direction. EPA, however, may 
consider taking action at a site if it receives new information about 
site conditions requiring federal action or the responding party and 
the state are unwilling or unable to ensure compliance with the 
negotiated agreement between the state and responding party or the 
state and EPA.
    Regions may respond with a State Action Letter to two different 
types of inquiries. The first type of inquiry may be from a state 
requesting that EPA send a State Action Letter regarding a particular 
site. Whenever possible and appropriate, regions should seek to provide 
a letter responsive to the state's request. The second type of inquiry 
may be from an outside party. The region should prepare a State Action 
Letter for that party in consultation with the state, if appropriate.
    The State Action Letter is appropriate to send to parties in the 
following situations: (a) the site is designated ``state-lead'' in 
CERCLIS; (b) the site is designated ``deferred to state'' in CERCLIS 
(see ``Guidance on Deferral of NPL Listing Determinations While States 
Oversee Response Actions,'' OSWER Dir. 9375.6-11, May 3, 1995); (c) the 
site was designated ``deferred to state'' and is subsequently 
designated ``archived'' in CERCLIS; or, (d) the site is listed in 
CERCLIS and is being addressed under a state voluntary cleanup program 
(``VCP'') pursuant to an approved MOA between the region and state. For 
sites not listed in CERCLIS, but that are located in a state that has 
entered into a VCP MOA with the region (and the region believes that 
the site is being addressed pursuant to the state's VCP), the region 
should issue a No Previous Federal Interest Letter.

IV. Use of this Policy

    This policy is not a rule, and does not create any legal 
obligations. The extent to which EPA applies the policy will depend on 
the facts of each case. For further information concerning this policy 
or sample letters, please contact Elisabeth Freed at (202) 564-5117 or 
Lori Boughton at (202) 564-5106 in the Office of Site Remediation 
Enforcement.

    Dated: January 23, 1997.
Steven A. Herman,
Assistant Administrator, Office of Enforcement and Compliance 
Assurance.

Appendix A--Sample No Previous Superfund Interest Letter

Addressee

Re: [Insert name or description of property/site]

    Dear [Insert name of party]: I am writing in response to your 
letter dated --/--/-- concerning the property referenced above. My 
response is based upon the facts presently known to the U.S. 
Environmental Protection Agency (``EPA'') and is provided solely for 
informational purposes.
    The federal Superfund Program, established to cleanup hazardous 
waste sites, is administered by EPA in cooperation with individual 
states and local and tribal governments. Sites are discovered by 
citizens, businesses, and local, state or federal agencies. When a 
potential hazardous waste site is reported, EPA records the available 
information in its database, the Comprehensive Environmental Response, 
Compensation, and Liability Information System (``CERCLIS'). [Note: if 
a region practices pre-CERCLIS screening procedures, please include 
language indicating that the procedures exists, whether or not the 
property is in the process of being ``pre-screened'', and what this 
means to the inquirer. Adjustments may be needed to the

[[Page 4627]]

sample language contained in this letter.] The fact that a site is 
listed in CERCLIS, however, does not mean that an EPA response action 
will occur at the site or that ownership or operation of the site is 
restricted or may be associated with liability. The fact that a 
property is not listed in CERCLIS does mean that EPA is not currently 
planning to take any action under the federal Superfund program to 
evaluate the site for inclusion on the National Priorities List (NPL) 
or to conduct removal or remediation activities.
    The above-referenced property was not identified in a search of the 
active and archived records in the CERCLIS database. Please note that 
its absence from CERCLIS does not represent a finding that there are no 
environmental conditions at this property that require action or that 
are being addressed under another federal or state program. The absence 
of the property from CERCLIS means that, at this time, EPA is not aware 
of any information indicating that there has been a release or threat 
of release of hazardous substances at or from the facility that needs 
to be assessed by the federal Superfund program and that no such 
assessment has been performed by EPA in the past. I encourage you to 
contact [insert name of state or local agency] to determine if they 
have information regarding the property and its environmental 
condition. [Regions also are encouraged to check with other program 
offices to determine whether EPA is addressing this site under another 
statute such as RCRA].
    If you would like more comprehensive information on current or 
historical CERCLIS data or to request an additional search, please 
contact the National Technical Information Service (``NTIS'), a 
publishing clearinghouse for government information. The address is: 
U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 
22161 (telephone: (703) 487-4650; fax: (703) 321-8547.) CERCLIS 
information is also available on the Internet at <a href="http://www.epa.gov/
superfund/index.html#Products">http://www.epa.gov/
superfund/index.html#Products</a>. Should you have any further questions 
about Superfund, please feel free to contact me at [insert phone 
number/address.]

          Sincerely,

Regional Contact

cc: State contact

Sample No Current Superfund Interest Letter

Addressee

Re: [Insert name or description of property]

    Dear [Insert name of party]: I am writing in response to your 
letter dated --/--/-- concerning the property referenced above. My 
response is based upon the facts presently known to the United 
States Environmental Protection Agency (``EPA'') and is provided 
solely for informational purposes. For the reasons stated below, EPA 
does not presently contemplate additional Superfund action for this 
property.
    In response to growing concern over health and environmental 
risks posed by hazardous waste sites, Congress enacted the 
Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980, as amended (``CERCLA''), establishing the Superfund 
program to clean up these sites. The Superfund program is 
implemented by EPA in cooperation with individual states and local 
and tribal governments. Sites are discovered by citizens, 
businesses, and local, state, or federal agencies. After a potential 
hazardous waste site is reported to EPA, the available information 
is recorded in the Comprehensive Environmental Response and 
Liability Information System (``CERCLIS''), EPA's data management 
system for Superfund. Sites are added to CERCLIS when EPA believes 
that there may be contamination that warrants action under 
Superfund.

I. [FOR ARCHIVED SITES]

    If , after an initial investigation, EPA determines that the 
contamination does not warrant Superfund action, or if an 
appropriate Superfund response action has been completed, EPA will 
archive that site from CERCLIS. This means that EPA believes no 
further federal response is appropriate. Archived sites may be 
returned to the CERCLIS site inventory if new information 
necessitating further Superfund consideration is discovered.
    EPA has archived the above-referenced property from the CERCLIS 
site inventory because [choose one of the following (a, b, or c) to 
complete the sentence]
    [a.] , following site evaluation activities, EPA determined that 
either no contamination was found or conditions at the property did 
not warrant further federal Superfund involvement.
    [b.] a federal removal action was completed and no further 
Superfund action is planned for this property.
    [c.] environmental conditions at the property are subject to 
requirements of [RCRA, UST, OPA, etc.], however, no further interest 
under the federal Superfund program is warranted. For further 
information concerning these requirements, please contact [name and 
telephone number]. [Add to previous sentence] EPA, therefore, 
anticipates no need to take additional Superfund enforcement, 
investigatory, cost recovery, or cleanup action at this archived 
site unless new information warranting further Superfund 
consideration or conditions not previously known to EPA regarding 
the site are discovered. EPA will maintain a dialogue with the 
states and will continue to refer archived sites to the states for 
their review and consideration. You may want to contact [insert 
state contact, address and telephone number] for further 
information.

II. [FOR PARTIAL OR FULL DELETIONS FROM NPL OR FOR A SITE BOUNDARY 
SITUATION]

    CERCLIS does not describe sites in precise geographical terms 
primarily because the boundaries of the contamination and available 
information on those boundaries can be expected to change over time. 
Once enough information regarding the nature and extent of the 
release of the hazardous substances is gathered, EPA can more 
accurately delineate the boundaries of a site. [Choose either (a), 
(b) or (c)].

(a) [If the property was included in a partial deletion from the NPL]

    The above-referenced property [is/appears to be] situated within 
the [name of NPL site] which is included on EPA's list of high 
priority hazardous waste CERCLIS sites known as the National 
Priorities List (``NPL''). EPA, however, has determined that no 
further investigatory or cleanup action is appropriate at the 
property under the federal Superfund program. With the [insert State 
Agency] concurrence, EPA has decided to delete the portion of the 
NPL site which contains the above-referenced property in accordance 
with the Agency's ``Procedures for Partial Deletions at NPL Sites'' 
(OERR Directive Number 9320.2-11, August 30, 1996).

(b) [If the property is contained within the NPL site or is defined as 
the NPL site and the site has been deleted from the NPL]

    The identified property [is/appears to be] [select one: situated 
within the defined geographical borders of the [name of NPL site] or 
defined as the [name of the NPL site]] which is included on EPA's 
list of high priority hazardous waste CERCLIS sites known as the 
National Priorities List (``NPL''). EPA, however, has determined 
that no further investigatory or cleanup action is appropriate at 
the property. In consultation with the [insert State Agency], EPA 
has decided to delete this property from the NPL in accordance with 
``Deletion from the NPL'' 40CFR 300.425(e).

(c) [If the property is not part of the CERCLIS site but is nearby]

    The above-referenced property is located [near or adjacent to] 
the [name of CERCLIS Site]. At this time, [statement as to the 
status of the site at present time: e.g., preliminary assessment, 
site investigation, removal, remedial investigation or feasibility 
study is underway or is completed]. Based upon available 
information, the property is not presently considered by EPA to be a 
part of the [name of the CERCLIS site].

[Add to end of paragraph (a), (b), or (c)]

    EPA, therefore, anticipates no need to take [any/additional] 
[Superfund enforcement--include if PRP search and cost recovery are 
complete] investigatory or cleanup action at this property unless 
new information warranting further Superfund consideration or 
conditions not previously known to EPA regarding the property are 
discovered. You may want to contact [insert state agency 
information] for further information. [If appropriate, enclose a 
copy of the fact sheet on the CERCLIS site].

III. [IF ADMINISTRATIVE RECORD HAS BEEN COMPILED]

    EPA has compiled an administrative record for the [name of 
CERCLIS or NPL Site] which provides information on the nature and 
extent of the contamination found at the site. This record is 
available at EPA Region--and at [location nearby to the site].

[[Page 4628]]

    If you have any additional questions, or wish to discuss this 
information, please feel free to contact [insert EPA contact and 
address].

          Sincerely yours,

Regional Contact

cc: State contact

Sample Federal Superfund Interest Letter

Addressee

Re: [insert name or description of property/site]

    Dear [Insert name of party]: I am writing in response to your 
letter dated --/--/-- concerning the property referenced above. My 
response is based upon the facts presently known to the United 
States Environmental Protection Agency (``EPA'') and is provided 
solely for informational purposes.
    In response to growing concern over health and environmental 
risks posed by hazardous waste sites, Congress passed the 
Comprehensive Environmental Response Compensation and Liability Act 
(``CERCLA'') and established the Superfund program to clean up these 
sites. The Superfund program is implemented by EPA in cooperation 
with individual states and local and tribal governments. Sites are 
discovered by citizens, businesses, and local, state and federal 
agencies. After a potential hazardous waste site is reported to EPA, 
the site-specific information is recorded in the Superfund database, 
the Comprehensive Environmental Response and Liability Information 
System (``CERCLIS'). Sites are added to CERCLIS when EPA believes 
that there may be contamination that warrants action under 
Superfund.
    EPA initially screens a potential hazardous waste site to 
determine what type of action, if any, is necessary. The Superfund 
program may then perform a preliminary assessment and site 
investigation to determine whether contamination at a property is 
likely to require a federal cleanup response, an evaluation to 
determine if a short term response action to eliminate or reduce 
contamination is needed, and add the site to EPA's list of high 
priority hazardous waste sites known as the National Priorities List 
(``NPL').
    EPA is examining [and/or addressing] the property referenced 
above in connection with the [insert name of CERCLIS/NPL site] under 
the authority of CERCLA. [Insert appropriate paragraphs from 
Sections I and/or II below. Use III for requests regarding the 
applicability of a specific policy. Section IV represents the 
closing paragraph for all the Federal Superfund Interest letters].

I. STATUS OF THE IDENTIFIED PROPERTY:

    a. The above-referenced property is presently part of [or is] 
the [insert name of site.] [Add paragraph from Section II for 
further information concerning the site.]
    b. The above-referenced property may be part of the [insert name 
of site.] [Add paragraph from Section II for further information 
concerning the site.]

II. STATUS OF EPA ACTIVITIES

    a. The site has been placed in the Comprehensive Environmental 
Response, Compensation and Liability Information System 
(``CERCLIS'') site inventory, but no studies or investigations have 
been performed to date. Accordingly, EPA has not developed 
sufficient information relating to the nature and extent of 
contamination to presently determine whether further federal action 
is appropriate under Superfund. Additionally, EPA has not yet 
determined which properties may be considered part of the site.
    b. A Superfund site evaluation is planned at the [insert name of 
site] to investigate possible contamination, and where it may be 
located. Accordingly, EPA has not yet determined which properties 
may be considered part of the [insert name of site.] [Add 
description of site evaluation activity or attach relevant 
documents, if available.]
    c. A Superfund site evaluation activity is underway at the 
[insert name of site] to investigate possible contamination, and 
where it may be located. Accordingly, EPA has not yet determined 
which properties may be considered part of the [insert name of 
site.] [Add description of site evaluation activity or attach 
relevant documents, if available.]
    d. The [insert name of site] has been proposed to [or placed on] 
the Superfund National Priorities List (``NPL''). [Refer to and/or 
attach Federal Register notice.] The description of [insert name of 
site] contains EPA's preliminary evaluation of which properties are 
affected, although the actual borders of the Superfund site could 
change based on further information regarding the extent of 
contamination and appropriate remedy.
    e. A Superfund Remedial Investigation/Feasibility Study (``RI/
FS'') is planned at [insert name of site.] [Add description of RI/FS 
and ensuing activities or attach relevant documents, if available].
    f. A Superfund Remedial Investigation/Feasibility Study (``RI/
FS'') is underway at [insert name of site.] [Add description of RI/
FS and ensuing activities or attach relevant documents, if 
available].
    g. A Superfund Remedial Investigation/Feasibility Study (``RI/
FS'') has been completed at [insert name of site.] [Add description 
of RI/FS and ensuing activities or attach relevant documents, if 
available].
    h. EPA is planning a Superfund Remedial Design/Remedial Action 
(``RD/RA'') at [insert name of site.] [Insert pertinent information 
such as a description of the ROD and RD/RA, such as date of issuance 
of the ROD, schedule for cleanup; Fund lead or PRP implementation, 
cleanup progress to date; a schedule for future cleanup, especially 
a final completion date, cleanup levels to be achieved, and 
anticipated future land use of the Site, or attach relevant 
informational documents].
    i. EPA has commenced a Superfund Remedial Design/Remedial Action 
(``RD/RA'') at [insert name of site.] [Insert pertinent information 
such as a description of the ROD and RD/RA, such as date of issuance 
of the ROD, schedule for cleanup; Fund lead or PRP implementation, 
cleanup progress to date; a schedule for future cleanup, especially 
a final completion date, cleanup levels to be achieved, and 
anticipated future land use of the Site, or attach relevant 
informational documents].
    j. Superfund Remedial Design/Remedial Action (``RD/RA'') has 
been completed at insert name of site.] [If possible provide 
information on cleanup achievements, whether it was PRP or Fund-
lead, etc., or attach relevant informational documents, if 
available] A Five-year Review will [will not] be necessary at 
[insert name of site.] [ Also, describe status with respect to 
deletion from the NPL.]
    k. A removal action is planned at [insert name of site.] 
[provide information on cleanup achievements, whether it was PRP or 
Fund-lead, and contact number for On-Scene Coordinator, cost 
recovery staff, or ORC attorney, or attach relevant informational 
documents, if available.]
    l. A removal action is ongoing at [insert name of site.] 
[provide information on cleanup achievements, whether it was PRP or 
Fund-lead, and contact number for On-Scene Coordinator, cost 
recovery staff, or ORC attorney, or attach relevant informational 
documents, if available.]
    m. A removal action has been completed at [insert name of site.] 
[provide information on cleanup achievements, whether it was PRP or 
Fund-lead, and contact number for On-Scene Coordinator, cost 
recovery staff, or ORC attorney, or attach relevant informational 
documents, if available.]

III. FOR PARTIES OR SITES COVERED BY AN EPA POLICY/STATUTE/REGULATION

    Dear [Insert name of party]: I am writing in response to your 
letter dated --/--/-- concerning the property referenced above. My 
response is based upon the facts presently known to the United 
States Environmental Protection Agency (``EPA').
    As you may know, the above-referenced property is located within 
or near the [insert name of CERCLIS site.] EPA is currently taking 
[insert description of any action that EPA is taking or plans to 
take and any contamination problem.]

[Choose either paragraph [a] or [b]]:

    [a. For situations when a party provides information showing 
that 1) a project found to be in the public interest is hindered or 
the value of a property is affected by the potential for Superfund 
liability, and 2) there is no other mechanism available to 
adequately address the party's concerns]
    The [insert policy citation/statutory/regulatory provision], 
provides that EPA, in an exercise of its enforcement discretion, 
will not take an enforcement action against parties who meet the 
conditions and criteria described in the [insert policy/statute/
regulation]. Based upon the information currently available to EPA, 
EPA believes that the [policy/statutory/regulatory provision] 
applies to [you/your] situation. I am enclosing a copy of the 
[policy/statutory or regulatory provision and fact sheet, if 
appropriate] for your review.
    [b. For situations when a party does not provide information 
showing that 1) a project found to be in the public interest is 
hindered or the value of a property is affected by the potential for 
Superfund liability, and 2) there is no other mechanism available to 
adequately address the party's concerns,

[[Page 4629]]

attach the appropriate policy/statutory or regulatory language and 
insert the following language]:
    The [insert policy citation/statutory/regulatory provision], 
provides that EPA, in an exercise of its enforcement discretion, 
will not take an enforcement action against parties who meet the 
conditions and criteria described in the [insert policy/statute/
regulation]. [EPA currently does not have enough information 
available to determine whether the [insert policy/statutory/
regulatory citation] applies to your situation OR EPA, based upon 
the current information available, believes that you/your 
circumstances do not meet the criteria/provisions of the [policy/
statute/regulation]. I, however, have enclosed a copy of the 
[policy/statutory or regulatory language] for your own review and 
determination of its applicability to you [or your situation].

IV. CLOSING PARAGRAPH

    EPA hopes that the above information is useful to you. 
[Optional--In addition, we have included a copy of our latest fact 
sheet for the (insert name of site.)] Further, we direct your 
attention to the [insert location of site local records repository] 
at which EPA has placed a copy of the Administrative Record for this 
site. [Include for section C letters only: This letter is provided 
solely for informational purposes and does not provide a release 
from CERCLA liability.] If you have any questions, or wish to 
discuss this letter, please feel free to contact [insert EPA contact 
and address].

          Sincerely,

Regional Contact

Enclosure

Sample State Action Letter

Addressee

Re: [Insert name or description of site/property]

    Dear [Insert name of party]: I am writing in response to your 
letter dated --/--/-- concerning the property referenced above. My 
response is based upon the facts presently known to the United 
States Environmental Protection Agency (``EPA'') and is provided 
solely for informational purposes.
    The problem of investigating, responding to, and cleaning 
property contaminated by hazardous substances is a complex one. In 
an effort to maximize resources and ensure timely responses, EPA and 
the states work together in responding to properties posing threats 
of environmental contamination. Although the Comprehensive 
Environmental Response Compensation and Liability Act (``CERCLA'', 
also known as ``Superfund'') is a federal law that establishes a 
federal program, the law also envisions and provides for state 
involvement at sites handled under the Superfund program. CERCLA 
explicitly describes scenarios under which a state may have a 
significant and prominent role in site activities.

I. [INSERT THIS SECTION FOR SITES DESIGNATED STATE-LEAD IN CERCLIS]

    The site about which you have inquired, [site name], is a site 
that falls under the federal Superfund program, but has been 
designated a state-lead. A state-lead designation means that 
although the site remains in EPA's inventory of sites and may be on 
EPA's list of highest priority sites, the National Priorities List 
(``NPL''), implementing responsibilities to investigate and cleanup 
that site rest with the state of [insert name of state]. 
Specifically, [insert name of state] is responsible for the day-to-
day activities at the site and will ultimately recommend the cleanup 
for the site. EPA's role is to review some of [insert name of 
state]'s milestone documents, if appropriate, provide technical 
assistance if needed, and, in most cases, approve the final cleanup 
method recommended by the state. The state and EPA work together 
closely, pursuant to the terms of a Memorandum of Agreement 
(``MOA'') to ensure that site responses are conducted in a timely 
manner and that interested parties are included in site activities.
    Because EPA's day-to-day role at the [insert name of site] is 
somewhat limited, you should check with the [your state or state's 
environmental program] for more detailed information on site 
activities. [insert name of state] is best able to provide you with 
detailed information about the site and public documents regarding 
site activity. [Regions should include the state RPM name and 
number, or at least the state's applicable department name and 
number].

II. [INSERT THIS SECTION FOR SITES DESIGNATED ``DEFERRED TO STATE 
AUTHORITIES'' PURSUANT TO EPA'S SUPERFUND DEFERRAL POLICY]

    The site about which you have inquired, [site name], is a site 
that falls under the federal Superfund program, but for which EPA 
does not have the day-to-day responsibility. Specifically, the [site 
name] site is not proposed for or listed on the NPL. EPA has agreed 
not to propose or list the [site name] site on the NPL while the 
state of [name of state] addresses the environmental conditions at 
the property under its own state authorities. While the [site name] 
cleanup is being conducted, EPA intends to act in accordance with 
``Guidance on Deferral of NPL Listing Determinations While States 
Oversee Response Actions'' (OSWER Dir. 9375.6-11, May 3, 1995). A 
copy of this guidance is enclosed for your review and should help 
you to better understand EPA's role and intentions at sites for 
which activities are deferred to state authorities.

III. [INSERT FOR A SITE DESIGNATED ``DEFERRED'' THAT NOW HAS BEEN 
ARCHIVED]

    The conditions at the above-referenced property were addressed 
by [name of state] pursuant to EPA's ``Guidance on Deferral of NPL 
Listing Determinations While States Oversee Response Actions'' 
(OSWER Dir. 9375.6-11, May 3, 1995). Upon completion of cleanup 
activities at the [site name], the property has been removed from 
EPA's inventory of hazardous waste sites, the Comprehensive 
Environmental Response, Compensation, and Liability Information 
System (``CERCLIS'). Consistent with EPA's state deferral guidance, 
EPA does not intend to further consider the property for listing on 
the NPL [or to take additional Superfund enforcement, investigatory, 
cost recovery, or clean up action at the property] unless EPA 
receives new information about site conditions that warrants 
reconsideration.
    A copy of EPA's ``Guidance on Deferral of NPL Listing 
Determinations While States Oversee Response Actions'' is enclosed 
for your review, so that you may better understand the nature of 
EPA's role at the [site name]. For detailed information about site 
activities and conditions, you may wish to contact [insert name of 
state or state's environmental department], the agency responsible 
for overseeing activities on the property.

IV. [INSERT FOR A SITE ADDRESSED UNDER A STATE VCP THAT HAS AN MOA IN 
PLACE]

    The site about which you have inquired, [site name], is a site 
contained in EPA's inventory of hazardous waste sites, the 
Comprehensive Environmental Response, Compensation, and Liability 
Information System. The [site name] site is not, however, proposed 
for or listed on EPA's list of highest priority sites, the National 
Priorities List (``NPL''). EPA and the state of [insert name of 
state] have agreed, pursuant to a memorandum of agreement (``MOA'') 
between the two agencies, to place the site under the authorities of 
[insert name of state]'s Voluntary Cleanup Program. For specific 
details regarding the activities at [site name] or the MOA, you may 
wish to contact the [state name or department responsible for 
implementing the MOA].
    If you have any additional questions, or wish to discuss this 
information, please feel free to contact [insert EPA contact and 
address].

          Sincerely yours,

Regional Contact:

cc: State contact

APPENDIX B--Use of Comfort Letters

    Each of the sample comfort letters is intended to address a 
particular set of circumstances and provide whatever information is 
contained within EPA's databases. The sample letters do not address 
every possible scenario, but are based on the most commonly asked 
questions. To differentiate between the purposes of the letters and 
understand the relationship between them, the table below provides 
guidance on which letter to use to answer a request for information.

[[Page 4630]]



------------------------------------------------------------------------
                                  Recommended letter  Recommended letter
     Question to be answered       if the answer is    if the answer is 
                                          yes                 no        
------------------------------------------------------------------------
Is the site or property listed    Federal Interest    No Previous       
 in CERCLIS?                       Letter.             Superfund        
                                                       Interest Letter  
                                                       or No Current    
                                                       Superfund        
                                                       Interest Letter. 
Has the site been archived from   No Current          Federal Interest  
 CERCLIS?                          Superfund           Letter.          
                                   Interest.                            
Is the site or property           Federal Interest    No Previous       
 contained (or undetermined)       Letter.             Superfund        
 within the defined boundaries                         Interest Letter  
 of a CERCLIS site?                                    or No Current    
                                                       Superfund        
                                                       Interest Letter. 
Has the site or property been     No Current          Federal Interest  
 addressed by EPA and deleted      Superfund           Letter.          
 from the defined site boundary?   Interest Letter.                     
Is the site or property being     If a MOA is in      If no MOA is in   
 addressed by a state voluntary    place, No           place, No        
 cleanup program?                  Previous            Previous         
                                   Superfund           Superfund        
                                   Interest Letter     Interest Letter  
                                   for Non-CERCLIS     for non-CERCLIS  
                                   sites, or State     sites, No Current
                                   Action Letter for   Superfund        
                                   CERCLIS sites; in   Interest Letter  
                                   either case, in     for CERCLIS      
                                   consultation with   sites.           
                                   the state.                           
Is EPA planning or currently      Federal Interest    No Previous       
 performing a response action at   Letter.             Superfund        
 the site?                                             Interest Letter  
                                                       for non-CERCLIS  
                                                       sites, No Current
                                                       Superfund        
                                                       Interest Letter  
                                                       for CERCLIS      
                                                       sites.           
Is the party asking whether or    If the party meets  If the party does 
 asserting that the conditions     the policy          not meet the     
 at the site or activities of      criteria (see       policy criteria  
 the party are addressed by a      page 6), Federal    (see page 6),    
 statutory provision or EPA        Interest Letter,    Federal Interest 
 policy? (Refer to federal         Section III,        Letter, Section  
 interest criteria on page 6)      paragraph (a)       III, paragraph   
                                   with a copy of      (b), with a copy 
                                   the policy or       of the policy or 
                                   statutory/          statutory/       
                                   regulatory          regulatory       
                                   language attached.  language         
                                                       attached.        
Is the site in CERCLIS but        State Action        No Previous       
 designated state-lead or          Letter, in          Superfund        
 deferred site?                    consultation with   Interest Letter  
                                   the state.          for Non-CERCLIS  
                                                       sites, Federal   
                                                       Interest Letter  
                                                       for CERCLIS sites
------------------------------------------------------------------------

[FR Doc. 97-2192 Filed 1-29-97; 8:45 am]
BILLING CODE 6560-50-P