4624 Federal Register / Vol. 62, No. 20 / Thursday, January 30, 1997 / Notices

1The terms ‘‘purchase’’ and ‘‘operate’’ also may

refer to lessees.

2The 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.

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.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.

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.’’ 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.

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

• 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’’);

• 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;

• 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,

• 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

• 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.

• 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
4626 Federal Register / Vol. 62, No. 20 / Thursday, January 30, 1997 / Notices

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.

• 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.

• 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
Federal Register / Vol. 62, No. 20 / Thursday, January 30, 1997 / Notices 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 http://www.epa.gov/

superfund/index.html#Products. 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].
4628 Federal Register / Vol. 62, No. 20 / Thursday, January 30, 1997 / Notices

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,
Federal Register / Vol. 62, No. 20 / Thursday, January 30, 1997 / Notices 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-today 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.
4630 Federal Register / Vol. 62, No. 20 / Thursday, January 30, 1997 / Notices

Question to be answered Recommended letter if the answer is yes Recommended letter if the answer is no

Is the site or property listed in CERCLIS? Federal Interest Letter ...................................... No Previous Superfund Interest Letter or No

Current Superfund Interest Letter.

Has the site been archived from CERCLIS? No Current Superfund Interest ......................... Federal Interest Letter.

Is the site or property contained (or undetermined) within the defined boundaries of a

CERCLIS site?

Federal Interest Letter ...................................... No Previous Superfund Interest Letter or No

Current Superfund Interest Letter.

Has the site or property been addressed by

EPA and deleted from the defined site

boundary?

No Current Superfund Interest Letter ............... Federal Interest Letter.

Is the site or property being addressed by a

state voluntary cleanup program?

If a MOA is in place, No Previous Superfund

Interest Letter for Non-CERCLIS sites, or

State Action Letter for CERCLIS sites; in either case, in consultation with the state.

If no MOA is in place, No Previous Superfund

Interest Letter for non-CERCLIS sites, No

Current Superfund Interest Letter for

CERCLIS sites.

Is EPA planning or currently performing a response action at the site?Federal Interest Letter ...................................... No Previous Superfund Interest Letter for nonCERCLIS sites, No Current Superfund Interest Letter for CERCLIS sites.

Is the party asking whether or asserting that

the conditions at the site or activities of the

party are addressed by a statutory provision

or EPA policy? (Refer to federal interest criteria on page 6)

If the party meets the policy criteria (see page

6), Federal Interest Letter, Section III, paragraph (a) with a copy of the policy or statutory/regulatory language attached.

If the party does not meet the policy criteria

(see page 6), Federal Interest Letter, Section III, paragraph (b), with a copy of the

policy or statutory/regulatory language attached.

Is the site in CERCLIS but designated statelead or deferred site?State Action Letter, in consultation with the

state.

No Previous Superfund Interest Letter for NonCERCLIS sites, Federal Interest Letter for

CERCLIS sites

[FR Doc. 97–2192 Filed 1–29–97; 8:45 am]

BILLING CODE 6560–50–P