[Federal Register Volume 62, Number 174 (Tuesday, September 9, 1997)]
[Notices]
[Pages 47495-47506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23831]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-5890-5]


Notice of Availability of Final Draft Guidance for Developing 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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability and request for comments.

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SUMMARY: This notice announces the availability of the document ``Final 
Draft Guidance for Developing Superfund Memoranda of Agreement (MOA) 
Language Concerning State Voluntary Cleanup Programs'' and the Agency's 
request for stakeholder comment on both aspects of the document, i.e., 
the final draft guidance and the site screening or designation process. 
In this document, the U.S. Environmental Protection Agency is 
encouraging its Regions to develop partnerships with States by 
negotiating MOAs that delineate roles and responsibilities for the 
cleanup of hazardous substance sites, such as Brownfields, that do not 
pose the type of risk usually addressed by Federal Superfund National 
Priorities List (NPL) cleanups. These MOAs are designed to facilitate 
the expeditious cleanup of these lower risk sites under State voluntary 
cleanup programs. This document sets out baseline criteria that EPA 
will use to evaluate State voluntary cleanup programs. This evaluation 
will be part of the negotiation of an MOA, or work planning document. 
As explained more fully in the draft guidance, for those sites included 
within the scope of the MOA, EPA will not exercise cost recovery 
authority and does not generally anticipate taking removal or remedial 
actions under the Comprehensive Environmental Response, Compensation 
and Liability Act of 1980 (CERCLA or Superfund) at these sites except 
under the limited circumstances detailed in the draft guidance.

DATES: Written comments must be postmarked or submitted by hand or 
electronically by October 24, 1997. Due to the previous stakeholder 
discussions on this guidance, including the February 27, 1997 open 
meeting noticed in the February 13, 1997 Federal Register, this comment 
period is not expected to be extended, and thus, this is likely to be 
the final opportunity for public comment on this guidance.

ADDRESSES: To submit comments, the public must send an original and two 
copies to Docket Number SFMOA, located at the Superfund Docket. The 
official address is: U.S. EPA, Superfund Docket (MC5202G), 401 M 
Street, N.W., Washington, D.C. 20460. Hand-delivered comments should be 
taken to: U.S. EPA, Superfund Docket, 1235 Jefferson Davis Highway, 
Crystal Gateway 1, First Floor, Arlington, VA 22202. (Also, see the 
section under ``Supplementary Information'' regarding the paperless 
office effort for submitting public comments.) The Superfund Docket is 
open for public inspection and copying of supporting information from 
9:00 a.m.-4:00 p.m., Eastern Time,

[[Page 47496]]

except for Federal holidays. The public must make an appointment to 
review docket materials by calling 703-603-9232. The public may copy a 
maximum of 100 pages from any regulatory document at no cost. 
Additional copies cost $0.15 per page.

FOR FURTHER INFORMATION CONTACT: Linda Garczynski, Director, Outreach 
and Special Projects Staff, Office of Solid Waste and Emergency 
Response, U.S. Environmental Protection Agency, Mail Stop 5101, 401 M 
Street, N.W., Washington, D.C. 20460, phone: (202) 260-4039, or Linda 
Boornazian, Policy and Program Evaluation Division, Office of 
Enforcement and Compliance Assurance, U.S. Environmental Protection 
Agency, Mail Stop 2273A, 401 M Street, N.W., Washington, D.C. 20460, 
phone: (202) 564-5144.

AVAILABILITY OF DOCUMENT: The Final Draft Guidance for Developing 
Superfund Memoranda of Agreement (MOA) Language Concerning State 
Voluntary Cleanup Programs follows this notice. In addition, the 
document can be accessed electronically through the U.S. Environmental 
Protection Agency's homepage at http://www.epa.gov/brownfields.

Background INFORMATION: States are developing voluntary cleanup 
programs to speed up the cleanup of non-National Priorities List sites, 
which, generally speaking, pose a lower risk than those sites listed on 
the National Priorities List (NPL). These voluntary cleanup programs 
pose an alternative to the conventional CERCLA or State Superfund-like 
enforcement approach to cleaning up contaminated sites. Through State 
voluntary cleanup programs, site owners and developers identify and 
clean up sites by using less extensive administrative procedures. The 
site owners and developers may then obtain some relief from future 
state liability for past contamination. This approach encourages 
cleanup of sites, such as Brownfields, that might otherwise not be 
cleaned up because of limited Federal and State resources.
    In addition, financial and real estate sectors are sometimes 
reluctant to support the redevelopment of brownfields and lower risk 
sites because they are concerned about potential liability under 
CERCLA. Some developers have also expressed concern that the 
uncertainty that can arise from potentially overlapping Federal/State 
cleanup authorities can become a disincentive to cleanup and 
redevelopment of these sites. This guidance addresses this concern by 
clarifying EPA and State roles and responsibilities, which helps reduce 
such uncertainty and promotes the cleanup and redevelopment of lower 
risk sites such as Brownfields. As of August 1997, eleven States and 
EPA Regions have signed Memoranda of Agreement clarifying their 
respective roles at certain sites being addressed under State voluntary 
cleanup programs.
    This draft guidance includes a draft site designation or screening 
process and proposes that this new process be used in conjunction with 
the guidance to designate sites as either Tier II (lower risk sites 
that are eligible for inclusion within the scope of an MOA concerning a 
State voluntary cleanup program) or Tier I (higher risk sites of the 
type that historically have been listed on the National Priorities 
List). Tier I sites are not eligible for inclusion within the scope of 
an MOA concerning a State voluntary cleanup program.
    The Agency is requesting comment on both the draft guidance and the 
site designation or screening process. EPA would like to receive 
comments of both a general nature, e.g., on the usefulness of the MOA 
approach to clarifying roles and responsibilities; the feasibility and 
ease of implementation of the site designation or screening process; as 
well as specific suggestions as to how the guidance or site tiering 
process could be improved. In particular, EPA would appreciate feedback 
and comment in the following areas:

Draft Guidance

    1. Does the final draft guidance represent an appropriate balance 
among assuring protective site cleanups; the appropriate level of 
State, Federal and community involvement at voluntary cleanup sites; 
and, encouraging cleanup and redevelopment of these sites, particularly 
in the following areas?
    a. Universe of sites eligible for inclusion within scope of MOA
    b. Criteria for evaluating State voluntary cleanup programs
    c. Level of Federal involvement (including provision of technical 
or financial assistance), if any, in State voluntary cleanup programs
    d. Level of Federal involvement, if any, in specific sites being 
addressed under State voluntary cleanup programs
    e. Methods for determining the protectiveness of voluntary cleanups 
at lower risk sites.
    f. Role of the community in voluntary cleanups

Site Designation and Screening Process

    2. What type and amount of information is needed at each stage in 
the decision process to reach a Tier I or Tier II decision?
    3. Are the screening steps in the best logical sequence?
    4. If there are nearby populations or sensitive environments, how 
could EPA ensure that private parties would evaluate them to account 
for changes in land use in the near or long-term?
    5. What information/tools (e.g., software) are currently available 
to the public that would allow them to collect the requested 
information?
    6. What are the resource implications for stakeholders who use 
these tools at each step of the process, i.e., how much is the 
estimated cost (in dollars and time) of conducting each step of the 
process?
    7. Are there preferred alternative mechanisms for screening sites? 
If so, please describe briefly.

SUPPLEMENTARY INFORMATION:

Paperless Office Effort

    EPA is asking prospective commenters to voluntarily submit one 
additional copy of their comments on labeled personal computer 
diskettes in ASCII (TEXT) format or a word processing format that can 
be converted to ACSII (TEXT). It is essential to specify on the disk 
label the word processing software and version/edition as well as the 
name of the commenter. This will allow EPA to convert the comments into 
one of the word processing formats utilized by the Agency. Please use 
mailing envelopes designed to physically protect the submitted 
diskettes. EPA emphasizes that submission of comments on diskettes is 
not mandatory, nor will it result in any advantage or disadvantage to 
any commenter. Rather, EPA is experimenting with this procedure as an 
attempt to expedite our internal review and response to comments. This 
expedited procedure is in conjunction with the Agency's ``Paperless 
Office'' campaign.

    Dated: August 29, 1997.
Timothy Fields, Jr.,
Acting Assistant Administrator, Office of Solid Waste and Emergency 
Response.
Steven A. Herman,
Assistant Administrator, Office of Enforcement and Compliance 
Assurance.
Oswer Directive--------------------------------------------------------

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

    This document gives guidance to EPA staff on how to draft MOAs 
with States on State voluntary cleanup programs. It is not a 
regulation, and does not create legally binding obligations on any 
person, including States and EPA. Whether or not EPA follows

[[Page 47497]]

the guidance in any particular case will depend on the 
circumstances. EPA may change the guidance in the future.

I. Purpose

    This guidance will assist the U.S. Environmental Protection 
Agency's (EPA) Regions and States in developing or amending Memoranda 
of Agreement (MOA) <SUP>1</SUP> regarding EPA/State relationships with 
respect to sites being addressed by State voluntary cleanup programs. 
Regions should use this guidance in determining whether to acknowledge 
the adequacy of a State voluntary cleanup program through an MOA. For 
those sites included within the scope of the MOA, Regions and States 
can agree that EPA will not exercise cost recovery authority and does 
not generally anticipate taking a removal or remedial action 
<SUP>2</SUP> at certain sites being addressed by a State's voluntary 
cleanup program except under limited circumstances. The decision to 
sign an MOA is discretionary upon the part of the Regional 
Administrator.
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    \1\ These MOAs are developed under the National Contingency Plan 
definition of a Superfund Memorandum of Agreement (SMOA), which is a 
nonbinding, written document executed by an EPA Regional 
Administrator and the head of a State agency to establish the nature 
and extent of EPA and State interaction during the removal, pre-
remedial, remedial, and/or enforcement response process. The SMOA 
generally defines roles and responsibilities; it is not a site-
specific document although attachments may address specific sites.
    \2\ EPA may obtain access, conduct site assessment or 
information gathering as necessary to determine whether an imminent 
and substantial endangerment exists.
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II. Introduction

State Voluntary Cleanup Programs

    A State voluntary cleanup program is an alternative to the 
conventional CERCLA or State Superfund-like enforcement approach to 
cleaning up contaminated sites. States are developing voluntary cleanup 
programs to speed up the cleanup of non-National Priorities List sites, 
which, generally speaking, pose a lower risk than those sites listed on 
the National Priorities List (NPL). <SUP>3</SUP> These voluntary 
cleanup programs are designed to achieve results that are acceptable to 
the State in terms of costs and protection of the environment and human 
health.
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    \3\ The NPL means the list, compiled by EPA pursuant to CERCLA 
section 105, of uncontrolled hazardous substance releases in the 
United States that are priorities for long-term remedial evaluation 
and response.
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    Many States have established voluntary cleanup programs. The key 
ingredients of a documented State voluntary cleanup program include 
established authority, investigative and remedial procedures, cleanup 
targets appropriate to sites, State sign-off conditions and procedures, 
and liability provisions. These voluntary cleanup programs allow 
volunteers, such as site owners and developers, to identify and clean 
up sites, to use less extensive administrative procedures, and to 
obtain some relief from future state liability for past contamination. 
These sites might otherwise not be cleaned up because of their 
relatively low priority, and because these sites are too numerous for 
other State or Federal cleanup programs to address within a reasonable 
time frame.
    State-established voluntary cleanup programs allow private parties 
to initiate and proceed with a cleanup with varying levels of State 
oversight and enforcement conditions. This guidance is intended to be 
flexible enough to accommodate variability among State voluntary 
cleanup programs; however, the guidance does describe a minimum set of 
criteria that a State voluntary cleanup program should meet before EPA 
signs an MOA with the State concerning its voluntary cleanup program.
    In this guidance, EPA uses the term ``voluntary'' to mean ``private 
party-initiated.'' It does not imply a lack of State oversight and/or 
approval of cleanup activities. Some State voluntary cleanup programs 
require the ``voluntary'' party to enter into an enforceable consent 
agreement.

III. Implementation

A. Scope and Applicability

    The principles outlined in this policy may apply to all sites, 
except as specified below.
    1. Those sites designated as Higher Risk (or Tier I) 
sites,<SUP>4</SUP> either under the screening process described in the 
Attachment to this guidance, or under an alternative screening process 
or mechanism proposed by the State and approved by EPA Headquarters, 
are not eligible for inclusion within the scope of an MOA.
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    \4\ Higher Risk (or Tier I) sites are sites that, while not 
currently proposed for listing on the NPL, have greater potential 
for being addressed under CERCLA authorities.
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    2. Those sites proposed for or listed on the National Priorities 
List (NPL); or, those sites where ranking packages proposing their 
inclusion on the National Priorities List (NPL) are submitted to EPA 
Headquarters, are not eligible for inclusion within the scope of the 
MOA.
    3. Those sites for which an order or other enforcement action is 
issued or entered under CERCLA or sections 3008(h), 3013(a), or 7003(a) 
of RCRA, and is still in effect, are not eligible for inclusion within 
the scope of an MOA.
    4. Those sites undergoing RCRA corrective action pursuant to RCRA 
sections 3004(u), 3004(v) or 3008(h) are not eligible for inclusion 
within the scope of an MOA. (However, see below for details on certain 
situations where exceptions may be made to this restriction for 
facilities or portions of facilities where correction action has not 
yet been initiated under an order or permit.)
    The Region and the State may agree to apply the principles of the 
MOA to voluntary cleanups that have already begun if the State's 
voluntary cleanup program met the requirements of this guidance at the 
time those voluntary cleanups commenced. The MOA should clarify that 
EPA is not waiving its claims for past costs under CERCLA or other 
relevant authority (to the extent EPA has incurred such costs), and the 
MOA does not affect EPA's ability to recover these costs.

B. Site Designation

    Generally, sites that are included within the scope of the MOA will 
be those types of sites that are often less-contaminated or that pose 
lower risk to public health, welfare or the environment; these types of 
sites are not typically addressed by EPA CERCLA cleanup actions. For 
purposes of this guidance, EPA will designate these sites as Lower Risk 
(or Tier II) sites. EPA's expectation for Lower Risk (Tier II) sites 
covered by an EPA/State MOA concerning State voluntary cleanup programs 
is that EPA cleanup actions should be necessary only under very limited 
circumstances, and that the contact for cleanup of Lower Risk (or Tier 
II) sites is the State.
    EPA has developed a site designation and screening mechanism that 
distinguishes Higher Risk (or Tier I) and Lower Risk (or Tier II) sites 
(See Attachment). The MOA should explain that States or volunteering 
parties will use this screening mechanism, which is attached, to 
designate a site as Higher Risk (Tier I) or Lower Risk (Tier II). A 
State may propose to EPA Headquarters an alternative screening process 
or mechanism for designating sites as Higher Risk (or Tier I) or Lower 
Risk (or Tier II). The State should demonstrate that the proposed 
alternative screening mechanism achieves results consistent with the 
results of the process described in the Attachment. If EPA Headquarters 
approves the alternative site tiering process, the MOA should attach 
the description of the alternative screening process. The MOA should 
also

[[Page 47498]]

recognize that alternative method as a way to designate sites as Higher 
Risk (or Tier I) or Lower Risk (or Tier II).
    The MOA should state that documentation of the decision designating 
a site as Higher Risk (or Tier I) or Lower Risk (or Tier II) should be 
kept in the file maintained by the State voluntary cleanup program, and 
be made available to EPA upon request. The MOA should also specify that 
the State is responsible for the site designations. If EPA subsequently 
determines that a site was improperly designated as Lower Risk (Tier 
II), the provisions of section III. D. ``EPA CERCLA Action'' do not 
apply to that site. The sites addressed through a State voluntary 
cleanup program that do not have documentation establishing a site as 
Lower Risk (Tier II), should not be eligible for inclusion within the 
scope of an MOA concerning EPA CERCLA cleanup actions.

C. Applicability to Facilities subject to RCRA Requirements

    This guidance is also applicable to CERCLA actions at sites subject 
to RCRA requirements, subject to the restrictions in section III. A., 
above, and as discussed below. Generally, this guidance could apply to 
two types of sites subject to RCRA: (1) sites at which there are only 
generators of hazardous waste; and (2) hazardous waste treatment, 
storage or disposal facilities (TSDFs).
Generators
    Sites at which there are only generators of hazardous waste are 
typically cleaned up by State cleanup programs (or, in some cases, the 
Federal CERCLA program) and are within the scope of the MOA unless 
otherwise excluded by the restrictions in Section III.A., above.
TSDFs
    Hazardous waste treatment, storage or disposal facilities (TSDFs) 
are typically cleaned up by EPA or authorized States under the RCRA 
corrective action provisions (See, RCRA sections 3004(u) and (v) and 
3008(h)). TSDFs or portions of TSDFs where corrective action has not 
yet been initiated under an order or permit may be included within the 
scope of the MOA on a case-by-case basis. At the Federal level, the 
CERCLA program has already generally deferred cleanups of RCRA TSDFs, 
including those RCRA TSDFs currently being addressed in authorized 
States under order or permit, to the RCRA program (see, 60 FR 14641; 
March 20, 1995).
Effect of RCRA Authorization
    Under RCRA section 3006, EPA may authorize States to carry out the 
RCRA program (including corrective action requirements), subject to EPA 
oversight. In a State authorized to implement RCRA corrective action, 
EPA expects the State to be the primary implementor of RCRA 
requirements at all facilities subject to corrective action, including 
facilities that have, have had, or should have had, RCRA interim 
status. Authorized States may, at their discretion, allow cleanup of 
TSDFs or portions of TSDFs under a State voluntary program. In an 
authorized State, TSDFs or portions of TSDFs where corrective action 
has not yet been initiated under an order or permit may be addressed by 
the policy discussed in section III. D. of this guidance on a case-by-
case basis.
Effect of Cleanup Under a State Voluntary Program on RCRA Permitting 
Requirements
    In authorized and non-authorized States, a voluntary cleanup at a 
TSDF does not avoid the requirements that TSDFs obtain RCRA permits and 
that RCRA permits address corrective action. In cases where voluntary 
cleanups occur prior to permit issuance, EPA or the authorized State, 
at the time of permit issuance, must determine whether or not a 
voluntary cleanup satisfied all corrective action requirements or 
whether additional corrective action activities are needed (e.g., if 
the voluntary cleanup addressed only a portion of the facility subject 
to corrective action). Voluntary cleanups can substantially accelerate 
the corrective action process by, for example, allowing it to proceed 
before permit issuance or, where a permit has been issued, by allowing 
more immediate remediation of certain areas which are not covered by 
the permit, unless otherwise excluded by the restrictions in section 
III.A., above.

D. EPA CERCLA Action

    The Regions should state in the Memorandum of Agreement the 
following:
    For sites being investigated or cleaned up consistent with the 
practices and procedures of a State voluntary cleanup program that 
meets the criteria discussed in this guidance, EPA will not exercise 
its cost recovery authority unless:
    a. The Administrator determined that the release or threat of 
release may present an imminent and substantial endangerment to public 
health or welfare or the environment; or,
    b. The State requests the Administrator to take action; or,
    c. Conditions at the site, that were unknown to the State at the 
time the response action plan was approved, are discovered, and such 
conditions indicate, as determined by the Administrator or the State, 
that the response action is not protective of human health or the 
environment; or,
    d. The cleanup of the site is no longer protective of human health 
or the environment, as determined by the Administrator or the State, 
because of a change or a proposed change in the use of the site.
    Except as provided in (a) through (d) above, EPA does not generally 
anticipate taking removal or remedial action at sites involved in State 
Voluntary Cleanup Programs addressed by a signed EPA/State Superfund 
Memorandum of Agreement.

E. EPA/State Coordination

    The outcome of these MOAs is EPA acknowledgment of the adequacy of 
a State voluntary cleanup program, and EPA's intention to rely on 
States to be responsible for addressing sites included within the scope 
of MOAs concerning these State voluntary cleanup programs. EPA and 
States should be developing MOAs in the context of the new framework 
for the State/EPA partnership, which EPA and State Environmental 
Managers endorsed in July 1994. A key principle governing the EPA/State 
relationship is that each State/EPA relationship must be based on an 
understanding of--and consent for--a clear assignment of roles and 
responsibilities. This principle envisions utilization of the 
comparative advantages and inherent strengths that each party brings to 
the relationship. Adherence to this principle should help avoid 
duplication of effort, and maximize the number of sites cleaned up 
through the efficient use of EPA and State resources.
    Prior to signing an MOA concerning a State voluntary cleanup 
program, the Region should review all relevant documents concerning the 
voluntary cleanup program to determine if the State voluntary cleanup 
program meets the six criteria discussed below. A Region may wish to 
conduct a State visit to review the State voluntary cleanup program 
prior to signing an MOA.
    The MOAs concerning State voluntary cleanup programs should include 
a provision that EPA will review the MOA upon significant changes to 
the State voluntary cleanup program, and that the State will provide 
EPA with prompt notice of changes to their laws, regulations, resource 
levels, guidance,

[[Page 47499]]

policies and practices governing such programs. The MOA should also 
state that EPA will periodically conduct reviews of State Voluntary 
Cleanup Programs where EPA has signed MOAs with States for the purpose 
of assessing how effectively EPA and the States are meeting the goals 
and expectations described in the MOA.
    These reviews of signed MOAs should be conducted on a staggered 
basis so that all MOAs signed in a Region are not up for review at the 
same time. At a minimum, the initial review of an MOA should be 
conducted three years after the date EPA signs an MOA; at a minimum, 
subsequent reviews of MOAs should be conducted every five years 
thereafter. While this guidance does not invalidate MOAs signed by EPA 
and States before the effective date of this guidance, an EPA Region 
should begin its staggered reviews by starting with those MOAs. Reviews 
of existing voluntary cleanup MOAs should be conducted to assess the 
consistency of State voluntary cleanup programs with this guidance.
    When an interested party expresses concern to EPA about a specific 
site covered under the MOA, EPA may contact the State, which would be 
responsible for providing documentation to EPA that designates the site 
as a Lower Risk (Tier II) site. EPA and the State should discuss the 
party's concern as well as the status of the site under the State 
voluntary cleanup program. If the public expresses significant concerns 
to EPA about any aspect of the State voluntary cleanup program, EPA and 
the State will discuss how the MOA is being implemented, and whether 
the State's voluntary cleanup program continues to meet the 
requirements set forth in this guidance.
    Prior to EPA deciding to sign an MOA concerning State voluntary 
cleanup programs, the Region will discuss with the State its views and 
record on NPL listing, and will consider that information as a factor 
in deciding whether to sign an MOA. EPA will include the State's views 
and record on NPL listing as part of its periodic reviews of how 
effectively the MOA is being implemented.

F. Criteria for a State Voluntary Cleanup Program

    Before a Region and State sign an MOA that acknowledges the 
adequacy of a State voluntary cleanup program, the Region should ensure 
that the State voluntary cleanup program meets the criteria described 
below. The MOA should make clear to any private party that recovery of 
response costs under CERCLA will require that the cleanup action meet 
the requirements outlined in the National Contingency Plan (See 40 CFR 
300.700 et. seq.).
1. Community Involvement
    Public involvement activities ensure that the public is both 
informed of and, if interested, involved in planning for response 
actions. Under voluntary cleanup programs, the State and/or the private 
sector may provide the opportunity for community involvement 
activities. General methods of providing the opportunity for meaningful 
community involvement may include practices, policies, guidance, or 
regulations on conducting community involvement on a site-by-site 
basis.
    The State voluntary cleanup program should provide opportunities 
for meaningful community involvement that are responsive to the risk 
posed by the site contamination and the level of public interest. While 
States should be afforded discretion in how their program provides such 
opportunities, State programs should, at a minimum, provide for 
adequate notification of the proposed voluntary cleanup plan to 
affected parties. The community involvement criterion can be 
substantively met, on a site-by-site basis, by the State voluntary 
cleanup program through any of the methods suggested below. At sites 
where a significant segment of the community does not speak English as 
a first language, there should be provisions for providing site 
information in languages other than English.
    a. Notifications about voluntary response actions to local 
government officials and community groups;
    b. Publication of legal notices about voluntary response actions in 
city or community newspapers (or other media, such as radio, church 
organizations and community newsletters) at key milestones in the 
response action process;
    c. Other forms of notification about voluntary response actions;
    Where the public has been involved in site activities and 
demonstrates an interest in participating in response action planning 
and implementation, additional meaningful public involvement 
opportunities may include:
    d. Preparation of a public involvement plan that establishes 
opportunities for public involvement. Such a plan may provide 
background about the site, response actions already conducted, and the 
history of public involvement at the site; identify the specific 
opportunities for public participation in cleanup decisions that will 
take place; and, describe activities that will be undertaken to address 
and incorporate public concerns in the cleanup.
    e. Involvement of the public in understanding the risk reduction 
aspects of the voluntary cleanup.
    f. The publication and distribution of site fact sheets.
    g. Conduct of community interviews, including interviews through 
notification and communication with community organization officials, 
environmental justice groups, civic groups, environmental interest 
organizations, and church organizations.
    h. Numerous other methods to solicit public participation and 
comment.
    i. Public meetings or hearings, either formal or informal.
    j. Local land use planning activities on current and/or future uses 
of sites.
2. Protectiveness
    A State voluntary cleanup program should ensure that voluntary 
response actions are protective of human health, welfare, and the 
environment. Reasonably anticipated future land uses should be 
considered in establishing protective contaminant concentrations. All 
voluntary response actions must comply with any Federal, State or local 
laws that apply to that site. Ways to determine protectiveness may 
include, but are not limited to:
    a. Background contaminant concentrations;
    b. Site specific risk assessments, based on U.S. EPA's Risk 
Assessment Guidance for Superfund, part A and B, and associated policy 
updates, e.g., soil screening guidance, or on State regulations and 
guidance;
    c. Contaminant-specific models such as the biokinetic uptake model 
for lead;
    d. Applicable and/or Relevant and Appropriate Requirements, such as 
Maximum Contaminant Levels (MCLs) for groundwater;
    e. Consistency with a human health risk range, as defined in 40 CFR 
300.430(e)(2)(i)(A)(2) for known or suspected carcinogens, or a hazard 
index for threshold contaminants, as defined in 40 CFR 
300.430(e)(2)(i)(A)(1); or,
    f. Risk-based corrective action assessment.
    2A. Response selection. Response actions should be conducted cost-
effectively, consistent with projected future uses at the site. All 
response actions must comply with any Federal, State and local laws 
that apply to the site. Long-term reliability should also be a goal 
when selecting response actions. Response actions may include one or 
more of the following:
    a. Treatment (active or passive) that eliminates or reduces the 
toxicity,

[[Page 47500]]

mobility, or volume of hazardous substances, pollutants, or 
contaminants;
    b. Containment of contaminated media to acceptable exposure levels;
    c. Transport to off-site treatment;
    d. Restricted access to and/or use of the site through 
institutional controls that are enforceable over time.
3. Resources/Technical Assistance
    The State should demonstrate that its voluntary cleanup program has 
adequate resources, including financial, legal and technical, to ensure 
that voluntary response actions are conducted in an appropriate and 
timely manner, and that meaningful outreach efforts are made to the 
affected community. The State agency should make available both 
technical assistance, and streamlined procedures where appropriate, to 
ensure expeditious voluntary response actions.
4. Certification of Response Action Completion
    A State Voluntary cleanup program should provide adequate 
mechanisms for the written approval of response action plans and a 
certification or similar documentation indicating that the response 
actions are complete. In situations where a State uses alternative 
mechanisms to approve cleanup decisions, all approval determinations 
will be considered the same as the State making the determinations, and 
as such, the State will be viewed as responsible for such decisions.
5. Oversight Authorities
    A State voluntary cleanup program should provide adequate oversight 
to ensure that voluntary response actions, including site assessments/
characterizations, are conducted in such a manner to assure protection 
of human health, welfare and the environment, as described above. For 
sites with nonpermanent remedies, especially nonpermanent remedies 
premised on the restricted use of the land, the State voluntary cleanup 
program should meet this criterion by including a requirement that the 
State program receives progress reports on site conditions, or by 
reserving the State program's right to conduct site inspections. If the 
State voluntary cleanup program does not require the State to monitor a 
site after the final cleanup report is approved, then the State 
voluntary cleanup program could meet this criterion by reserving the 
State's authority to remove the cleanup certification under certain 
circumstances, such as a change in the site's use, a failure of 
institutional controls, or the discovery of additional contamination.
6. Enforcement Authorities
    The State voluntary cleanup program should show the capability, 
through enforcement or other state authorities, of ensuring completion 
of response actions if the volunteering party(ies) conducting the 
response action fail(s) or refuse(s) to complete the necessary response 
activities, including operation and maintenance or long-term monitoring 
activities.

G. Reporting Requirements

    The Region and the State should negotiate the need for reporting 
site names and the status of the sites by name to best suit the needs 
of that Region and State. The MOA should state, however, that the State 
agrees to maintain a list of site names (and locations) covered by the 
MOA and to make such list available to EPA and the public upon request. 
The State Agency should report, at a minimum, the following information 
to the Region on an annual basis.
    a. Number of sites in each stage of the State voluntary cleanup 
program;
    b. Number of sites entering the voluntary cleanup program the 
previous year; and,
    c. Number of sites having received State agency approvals of full 
or partial completions in the previous year.
    EPA should state in the MOA that it will conduct selective audits 
of sites within the scope of the MOA for the purpose of assessing how 
the site designation methodology attached to this guidance, or an 
alternative site designation mechanism approved by EPA Headquarters, is 
being implemented by either the State or the volunteering party. 
Regions and States should discuss the status of CERCLIS <SUP>5</SUP> 
sites covered by the MOA at least semi-annually to ensure EPA/State 
coordination on sites covered by the MOA. This is especially important 
since EPA decides which sites are removed from CERCLIS.
---------------------------------------------------------------------------

    \5\ CERCLIS is the abbreviation of the CERCLA Information 
System, EPA's comprehensive data base and management system.
---------------------------------------------------------------------------

IV. Financial Assistance to States To Support Voluntary Cleanup Program 
Activities

    EPA recognizes that most State voluntary cleanup programs are 
intended to be self-sustaining. Most of the voluntary programs with 
active State oversight require the private party to pay an hourly 
oversight charge to the State environmental agency in addition to all 
cleanup costs. Some States require application fees that can be applied 
against oversight costs.
    However, EPA does recognize that States may need financial 
assistance to help establish new State voluntary cleanup programs and 
to help enhance existing State voluntary cleanup programs. To 
accomplish this, the Region may enter into cooperative agreements with 
the State to provide funding to the State for certain purposes.
    The Region may provide Fund money to States for development and 
enhancement of voluntary cleanup programs through core program 
cooperative agreements. OSWER has developed guidance for use of core 
program cooperative agreement funding of State voluntary cleanup 
program infrastructure. (See May 1, 1997 memorandum from Timothy 
Fields, Jr., Acting Assistant Administrator, OSWER, entitled ``Approach 
for Regional Funding of State Voluntary Cleanup Programs.'') If the 
Region intends to provide funds to the State for voluntary programs, 
the Region should identify its resource needs for State voluntary 
cleanup programs in its annual budget development process.

V. Technical Assistance to States to Support Voluntary Cleanup 
Program Activities

    EPA will also provide technical assistance to States to support 
voluntary cleanups. EPA will share with States information contained in 
publicly available national databases. EPA will share any lessons 
learned or national expertise it has gained through the CERCLA program 
with States who face similar assessment and cleanup problems at 
voluntary cleanup sites.

Tier I/II Designation and Screening Process Summary

Introduction/Purpose
    This document summarizes EPA's Tier I and Tier II definitions and 
screening process for sites being addressed through voluntary cleanup 
programs. Tier I sites are among those where EPA has historically taken 
cleanup actions under the Federal Superfund program. Tier II sites are 
generally representative of those where EPA has not historically taken 
Federal Superfund cleanup actions. EPA intends that any party can use 
the process outlined below to make Tier I/II designations. 
Understanding the potential for Superfund involvement enables 
stakeholders to make more informed property cleanup, transfer, and 
redevelopment decisions.

[[Page 47501]]

Defining Tier I and Tier II Sites
    Tier I sites are those that have greater potential to require long-
term or emergency cleanup work under the Federal Superfund program. 
These are sites which have a release of a hazardous substance, 
pollutant, or contaminant that has caused, or is likely to cause, human 
exposure or contamination of a sensitive environment. These sites 
typically involve contamination of drinking water, surface water, air, 
or soils which has either caused, or is likely to cause, exposure to 
nearby populations, or has contaminated, or is likely to contaminate, 
sensitive environments (such as wetlands, national parks, and habitats 
of endangered species, etc). Tier II sites are those that have less 
potential to require long-term or emergency cleanup work under the 
Federal Superfund program. This includes sites which: (1) Do not 
qualify for response under Superfund (e.g., CERCLA petroleum exclusion 
sites); (2) score below 28.5 based on EPA's Hazard Ranking System 
(HRS), 55 FR 51532; (3) are being adequately addressed under other 
Federal statutes, subject to the restrictions specified in Section III. 
A. ``Scope and Applicability'' of the MOA/VCP guidance document; or (4) 
otherwise do not meet the criteria given above for Tier I sites.
Screening Process
    To conserve resources, EPA has employed a phased, progressively 
more detailed screening process to identify Federal Superfund sites. 
Key factors in making decisions about sites include whether a release 
of hazardous substances has occurred or is likely to occur and 
determining whether people or sensitive environments have been or are 
likely to be impacted by the release. Only about 15 percent of the 
sites screened by Superfund to date have required removal or remedial 
actions--most are screened out. The Superfund screening process differs 
from the private sector site evaluation approach which typically is 
interested in what environmental liabilities and remediation costs are 
associated with a site or property. Consequently, the private sector 
assessments focus on collecting information on the property, not 
offsite impacts. The Tier I/II screening process outlined below uses 
common elements of both approaches and incorporates, when necessary, 
the data needed for EPA to ensure human health and environmental issues 
are addressed.

BILLING CODE 6560-50-P
[GRAPHIC] [TIFF OMITTED] TN09SE97.001


BILLING CODE 6560-50-C
    EPA's HRS model can also be applied at any point in the assessment 
process to assist parties in determining the likelihood of Federal 
Superfund interest. Sites with an HRS score below 28.5 are considered 
Tier II by the Agency and account for most of the sites assessed under 
Superfund.
    The steps involved in making a Tier I/II determination are further 
described in the Screening Process section of the Tier I/II Designation 
and Screening Process document.

[[Page 47502]]

Conclusion
    EPA believes the screening process described above can by used by 
any party to determine whether a site, in most cases, would be Tier I 
or Tier II. It enables parties to make many Tier I or Tier II 
designations based on information collected as part of the private due 
diligence process. Additional detail can be found in the attachment 
entitled ``Tier I/II Designation and Screening Process.''

Tier I/II Designation and Screening Process

Purpose
    The purpose of this guidance is to provide definitions of Tier I 
and Tier II sites within the context of MOAs covering State VCPs. The 
guidance also describes a process that can be used by any party, e.g., 
site owners, State Agencies, etc., to decide whether a site should be 
classified as Tier I or Tier II for the purpose of determining status 
under the MOA. The overall goal of this guidance is to assist users in 
reaching consistent decisions regarding Tier I/II designations.
Scope
    EPA intends that this approach be used by states and/or private 
parties, including, for example, site owners, to assist them in making 
decisions regarding their status under a State VCP/MOA. EPA believes 
that in most instances private parties can use the following 
definitions and screening process to make accurate determinations on 
whether sites are Tier I or Tier II. Although the volunteering party 
may conduct the assessment on which the tiering decision is based, the 
State is ultimately responsible for tiering decisions. If the EPA 
subsequently determines that a site was improperly classified as ``Tier 
II'', the provisions of section III. D. ``EPA CERCLA Actions'' of the 
MOA/VCP guidance document will not apply.
    The Agency anticipates that some of the sites addressed through 
voluntary cleanup programs may be included in EPA's Comprehensive 
Environmental Response, Compensation and Liability Information System 
(CERCLIS) inventory. EPA removes sites from CERCLIS after assessment 
and any necessary Superfund response and enforcement actions are 
completed. Approximately 75 percent of the sites addressed under the 
Federal Superfund program to date have been removed from the CERCLIS 
inventory. With respect to voluntary cleanup programs, EPA will 
continue to decide which sites are removed from CERCLIS based on the 
same criteria that are applied to sites not covered under these 
programs.
Background
    The Federal Superfund program evaluates sites brought to the 
Agency's attention to identify those sites posing the most serious 
threats to human health and the environment. Generally, EPA employs a 
multi-phase evaluation process to identify which sites are among the 
highest priority for response, including whether they need removal 
actions, and to determine what response actions are appropriate. 
Results of the evaluations are used to determine whether involvement by 
the Federal Superfund program, e.g., remedial actions at National 
Priorities List (NPL) sites, performing time critical removal actions 
by the Federal Superfund program, etc., is warranted.
    These evaluations, including identifying hazardous substances, 
exposure pathways, and receptors/targets, seek to identify sites that 
have caused, or are likely to cause, human exposure or contamination of 
sensitive environments. The definition of Tier I sites is directed 
towards delineating these sites. Sites that do not meet these criteria, 
which the Agency expects to be the majority of sites brought to the 
Agency's attention, are defined as Tier II sites. Specifics of these 
definitions are addressed below.
Tier I Definition
    The Federal Superfund Program will generally classify a site as 
Tier I if a release from that site has caused, or is likely to cause, 
human exposure to the release or contamination of a sensitive 
environment, and the release can be addressed under CERCLA authorities, 
and cleanup of the release has not been generally deferred to another 
Federal cleanup program. This includes, but is not limited to, sites 
where:
    <bullet> Drinking water supplies have been, or are likely to 
become, contaminated with a hazardous substance (as defined in HRS); or
    <bullet> Soils on or in close proximity to school, day care center, 
or residential properties have been contaminated by a hazardous 
substance three times above background levels; or
    <bullet> Toxic substances that bioaccumulate have been discharged 
into surface waters; or
    <bullet> Air releases of hazardous substances have been identified 
in a populated area; or
    <bullet> Sensitive environments have been contaminated; or
    <bullet> Releases would require immediate action from EPA (e.g., 
fire, explosions).

    Note: Italicized terms are defined in the Tier I/II Screening 
Mechanism Definitions section at the end of this document.
Tier II Definition
    Tier II sites are those that would be unlikely to warrant Federal 
remedial actions, i.e., those that do not meet the definition for Tier 
I sites. Tier II sites would also include sites that score below 28.5, 
based on the Hazard Ranking System (HRS), 55 FR 51532, and do not meet 
any of the characteristics of Tier I sites identified above. The 
majority of sites brought to the Agency's attention over the course of 
the Superfund program have scored below 28.5 and are considered Tier 
II.
Screening Process
    The screening process below represents an approach to determine 
whether a site is Tier I or Tier II. The process consists of multiple 
steps in which each successive step involves more detailed information 
about a site and its environs. Information needed at each step is used 
to determine whether a site is Tier I, Tier II, or if further 
evaluation is necessary to make a Tier I/II decision. EPA's HRS model 
can be applied at any point in the process to assess a site. Those 
sites which score below 28.5 at any step in the process and do not meet 
any of the characteristics of Tier I sites identified above are defined 
as Tier II. The HRS model is backed by a substantial body of guidance 
available to assist users in making decisions consistent with those of 
EPA. On the other hand, if the reviewer identifies conditions 
consistent with any of the elements that make up a Tier I site, no 
further investigation would be needed to classify the site as Tier I. 
Given that each step in the process builds upon information collected 
in previous stages, the process may be entered at any point based on 
the amount of knowledge and data available regarding site conditions 
and its environs.
    The iterative nature of assessing sites by collecting more detailed 
information and reaching conclusions in successive evaluation stages is 
similar to both the public sector approach (e.g., preliminary 
assessment followed by a site inspection if warranted) and the private 
sector approach (e.g., phase I assessment based on ASTM Standard 
Practice E 1527, followed by a phase II if warranted and requested).
    Tier I/II status reflects site conditions at the time the 
assessment data are collected and a decision is made. As such, a Tier 
I/II decision could become invalid, if site conditions change, new 
information is discovered, or site

[[Page 47503]]

characteristics change (e.g., a new residential development is built on 
a site).
    The five major steps in making a Tier I/II determination include: 
(1) Exclusions; (2) Phase I; (3) Expanded Phase I; (4) Limited 
Sampling; and (5) Extensive Sampling. Each of these steps is described 
in detail below.
    Exclusions. The first step in determining whether a site is Tier I 
or Tier II involves determining whether the site is eligible for 
cleanup under CERCLA authorities or if the site is being adequately 
addressed under another federal statute such as the Resource, 
Conservation and Recovery Act (RCRA). Sites that are ineligible for 
CERCLA response or are being addressed under another federal statute 
instead of CERCLA should receive a Tier II designation.
    A. Statutory restrictions. Some substances are excluded under 
CERCLA, and sites that contain only those substances are ineligible for 
CERCLA response actions. Similarly, Section 104(a)3 of CERCLA lists 
other limitations on CERCLA response. In general, a CERCLA response may 
be taken at a site if there is a release or threat of a release of a 
hazardous substance, pollutant or contaminant, or if the site poses an 
imminent or substantial danger to public health, welfare, or the 
environment).
    Section 101(14) of CERCLA defines hazardous substances by 
referencing substances specifically listed under other Federal laws. A 
``hazardous substance'' is any element, compound, mixture, solution or 
substance specifically designated as a ``hazardous substance'' or is 
regulated under the Resource Conservation and Recovery Act, the Clean 
Air Act, Clean Water Act, or Toxic Substances Control Act. Section 
101(33) of CERCLA broadly defines the term ``pollutant or contaminant'' 
which could include any substance known or reasonably anticipated to be 
harmful to human health or ecological health. Because no substances are 
actually listed as pollutants or contaminants in CERCLA, the Agency 
determines on a case-by-case basis which substances fall within the 
definition.
    There are specific statutory exclusions that could cause a site to 
be ineligible for CERCLA response. For example, hazardous substances, 
as defined under CERCLA, specifically exclude petroleum and natural 
gas, and therefore CERCLA authority may not be used to respond to 
releases of these substances unless they are specifically listed or 
designated under CERCLA. The exclusion applies to petroleum, including 
crude oil or any fraction thereof (if the fraction is not specifically 
listed nor designated a hazardous substance by other listed federal 
acts), natural gas, natural gas liquids, liquefied natural gas, and 
synthetic gas usable for fuel. Sites are excluded if they contain only 
excluded petroleum products. EPA expects that most releases from 
petroleum underground storage tanks (USTs) at gasoline filling 
stations, for example, would qualify for this exemption.
    On the other hand, releases of petroleum products that are 
contaminated with hazardous substances (i.e., used oil/waste oil 
contaminated with metals or PCBs) may fall within CERCLA response 
authorities, if the hazardous substances cannot be separated from the 
petroleum, or if plumes of exempted substances are commingled with 
plumes of non-exempted substances.
    In addition, section 101(22) of CERCLA excludes a limited category 
of radioactive materials from the statutory definition of ``release,'' 
making a site ineligible for CERCLA response. The excluded categories 
of radioactive materials are:
    1. Releases of source, by-product, or special nuclear material (not 
including source material) subject to section 170 of the Atomic Energy 
Act; <SUP>6</SUP> and
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    \6\ Under this act, ``source'' means uranium or thorium, or any 
combination of the two, in any physical or chemical form, ``by-
product'' means any radioactive material that was made radioactive 
by exposure to radiation from the process of using or producing 
special nuclear material, and ``special nuclear material'' is 
plutonium, uranium-233, enriched uranium-233 or--235, or any 
material that the NRC determines to be special nuclear material not 
including source material.
---------------------------------------------------------------------------

    2. Any release of source, by-product, or special nuclear material 
from any processing site specifically designated under the Uranium Mill 
Tailings Radiation Control Act of 1978.
    Parties should consult with State and/or Federal contacts and 
consult appropriate case law to determine whether the site is excluded 
from CERCLA consideration due to statutory restrictions.
    B. Other federal statutes. In addition to statutory restrictions, 
sites being adequately addressed under other federal statutes, such as 
RCRA, may also qualify for a Tier II designation, but refer to Section 
III. A. ``Scope and Applicability'' of the MOA/VCP guidance document to 
determine whether a specific site is eligible for inclusion under the 
MOA/VCP. RCRA is EPA's other central authority for cleaning up releases 
of hazardous substances, and has roughly parallel procedures to CERCLA 
in responding to releases of hazardous substances. The Agency has 
adopted a policy to use RCRA Subtitle C (hazardous waste) authority to 
respond to sites that can be addressed under RCRA Subtitle C corrective 
action authority (see 54 FR 41000, October 4, 1989).
    Types of sites covered under the policy include hazardous waste 
treatment, storage and disposal facilities (TSDFs) that qualify under 
EPA's National Priorities List/RCRA deferral policy (see 51 FR 21057, 
53 FR 23980, and 54 FR 41004). Parties should consult with State and 
Federal contacts to determine whether a site is being addressed under 
another federal statute, and therefore, whether a Tier II designation 
is appropriate. Again, parties must still refer to Section III. A. 
``Scope and Applicability'' of the MOA/VCP guidance document to 
determine whether a specific site is eligible for inclusion under the 
MOA/VCP.
    Parties should consult with State and/or Federal contacts and 
consult appropriate case law to answer the following questions:
    Question 1A: Is the site eligible for response under CERCLA 
authorities?
    If NO, the site should be classified as Tier II and no further work 
under this process is necessary;
    If YES, refer to Question 1B:
    Question 1B: Is the EPA or the State addressing the site under 
another federal statute instead of CERCLA?
    If NO, proceed to the Phase I step (or other appropriate step 
depending on site information available);
    If YES, the site should be classified as Tier II and no further 
work under this process is necessary.

Phase I

    The Phase I step within this process is quite similar to the 
methods prescribed by ASTM Standard Practice E 1527, although it is 
limited to hazardous substances as defined under CERCLA. The primary 
purpose of the Phase I step is to gather readily available information 
about a site to identify the presence or likely presence of an existing 
or past release of a hazardous substance into the ground (i.e., soil), 
ground water, surface water, or air. This step determines whether there 
is evidence or an indication that hazardous substances, pollutants, or 
contaminants were ever handled or disposed at the site either currently 
or in the past.
    The Phase I step in this process consists of a review of records 
and related environmental reports pertaining to the site and a site 
visit to observe site conditions. Types of information collected during 
this step include a

[[Page 47504]]

general site description, current and past site use (e.g., nature and 
type of industrial use), topography, and waste characteristics, 
including an estimation of the type and quantity of hazardous 
substances at the site. Visual observations should consider stressed 
vegetation, discolored soils, oily ponds, and similar signs of 
contamination. No sampling is involved in this step. Geologic, 
hydrogeologic, and hydrologic data will prove useful along with 
topographic maps to determine whether migration of hazardous substances 
is likely. Data collected should help identify the potential 
distribution and mobility of hazardous substances in soil, ground 
water, surface water, and air.
    Observations should also identify any site conditions warranting 
immediate or emergency actions. Examples of these include the threat of 
fire and/or explosion from unstable or reactive hazardous materials, 
the threat of direct contact with a hazardous substance, the threat of 
a continuing release of a hazardous substance, and the threat of 
contaminating surface waters or drinking water supplies.
    The collection and review of readily available information at this 
step should be sufficient to answer the following question:
    Question 2: Is it reasonable to expect that hazardous substances 
are present at the site?
    If NO, the site should be classified as Tier II and no further work 
under this process is necessary;
    If YES, proceed to the Expanded Phase I step (or other appropriate 
step depending on site information available).

    Note: The site should be classified as Tier I if information 
indicates a release of a hazardous substance, pollutant, or 
contaminant has caused, or is likely to cause, human exposure or 
contamination of a sensitive environment, or if the site otherwise 
exhibits conditions such as those described under the Tier I 
definition above.

Expanded Phase I

    If the Phase I indicates a reasonable expectation that hazardous 
substances are present at the site, the next step in this process 
involves gathering environs data to determine what could be impacted by 
a release from the site. Therefore, the purpose of the Expanded Phase I 
step is to identify and verify the existence and locations of nearby 
people (or pathways of human exposure, e.g., water intakes or wells) 
and sensitive environments that might be threatened by a release from 
the site.
    Examples of data collected at this stage include nearby 
residential, worker, and student population estimates, nearby 
municipal, private, and other drinking water supplies, drinking water 
wells and intakes, fisheries (including sport and subsistence fishing), 
and sensitive environments such as wetlands, national parks, wildlife 
refuges, and habitats of threatened or endangered species. This 
information is collected to determine whether a release of hazardous 
substances at the site could lead to human exposure or contamination of 
sensitive environments.
    Data collected under the Expanded Phase I step should be sufficient 
to answer the following question:
    Question 3: Could nearby populations or sensitive environments be 
at risk from the site?
    If NO, the site should be classified as Tier II and no further work 
under this process is necessary;
    If YES, proceed to the Limited Sampling step (or other appropriate 
step depending on site information available).

    Note: The site should be classified as Tier I if information 
indicates a release of a hazardous substance, pollutant, or 
contaminant has caused, or is likely to cause, human exposure or 
contamination of a sensitive environment, or if the site otherwise 
exhibits conditions such as those described under the Tier I 
definition above.

Limited Sampling

    If the Phase I investigation indicates a reasonable expectation 
that hazardous substances have been present at the site and the 
Expanded Phase I indicates that human populations or sensitive 
environments may be threatened by a release from the site, sampling 
should be conducted to confirm the presence of hazardous substances on 
the site. The purpose of the Limited Sampling step is to collect and 
analyze waste and environmental samples, using field screening and 
analytical techniques where appropriate, to determine the hazardous 
substances present at a site and whether they are being released to the 
environment.
    The Limited Sampling step is not intended to be an exhaustive 
assessment of environmental conditions at a site. Rather investigators 
should obtain enough information to confirm whether hazardous 
substances are present. As in the Phase I step, investigations should 
identify site conditions posing immediate health or environmental 
threats which require emergency response.
    Site sampling typically requires developing a work plan, along with 
sampling and health and safety plans. Sampling and analysis should 
comply with a screening level quality of data following adequate 
quality assurance and quality control (QA/QC) procedures (40 CFR 
31.45). The sampling plan should employ sound, scientific and 
professional judgment in identifying sampling locations.
    The sampling data must be sufficient to answer the following 
question:
    Question 4: Does site specific sampling confirm the presence of 
hazardous substances at the site?
    If NO, the site should be classified as Tier II and no further work 
under this process is necessary;
    If YES, proceed to the Extended Sampling step (or other appropriate 
step depending on site information available).

    Note: The site should be classified as Tier I if information 
indicates a release of a hazardous substance, pollutant, or 
contaminant has caused, or is likely to cause, human exposure or 
contamination of a sensitive environment, or if the site otherwise 
exhibits conditions such as those described under the Tier I 
definition above.

Extensive Sampling

    If the Limited Sampling step confirms the presence of hazardous 
substances at the site, more extensive sampling may be required to 
determine whether the site is Tier I or Tier II. The purpose of the 
Extensive Sampling step is to further evaluate the degree to which a 
site presents a threat to human health or welfare or the environment by 
collecting and analyzing waste and environmental media samples. This 
step is implemented to document releases and exposure/contamination on-
site and off-site. Off-site sampling is needed to provide background 
samples, and where appropriate, identify human exposure or 
environmental contamination.
    Background samples are needed to determine whether contamination at 
the site is at least three times higher than background levels. 
Sampling conducted under this step should comply with a definitive data 
level of QA/QC (40 CFR 31.45). The detection limits used in the 
analysis of both the background and site-related contamination samples 
should be quantitatively consistent with sample quantitation limits as 
specified under the Superfund Contract Laboratory Program. 
Quantification of on-site and off-site threats should be sufficient to 
answer the following:
    Question 5: Do on-site and off-site sampling data show exposure, or 
likely exposure, of nearby populations, and/or contamination, or likely 
contamination of sensitive environments at a minimum of three times 
above background levels or above EPA standard sample quantification 
limits?

[[Page 47505]]

    If NO, the site should be classified as Tier II and no further work 
under this process is necessary;
    If YES, the site should be classified as Tier I.

    Note: The site should also be classified as Tier I if the site 
otherwise exhibits conditions such as those described under the Tier 
I definition above.
Request for Comments
    The Agency is requesting comment on the criteria and screening 
process. EPA would like to receive comments on the screening mechanism, 
both how it works in general (for example, feasibility and ease of 
implementation), and specific suggestions for how the process could be 
improved. In particular, EPA would appreciate feedback and comment on 
the following questions:
    1. What type and amount of information is needed each stage in the 
decision process to reach a Tier I or Tier II decision?
    1a. Would collecting the suggested information allow a party to 
move forward through the decision-making process efficiently and 
expeditiously?
    1b. What can be done with the process to guard against inaccurate 
assessments?
    1c. How well will this process work within established State 
programs?
    2. Are the screening steps in the best logical sequence?
    2a. At what point it is useful to have information on exposure 
targets (i.e., nearby populations and sensitive environments).
    2b. Would it be more useful to have information about exposed/
potentially exposed targets before or after limited sampling is 
performed?
    2c. When would information on target access to contamination be 
collected?
    3. If there are nearby populations or sensitive environments, how 
could EPA ensure that private parties would evaluate them to account 
for changes in land use in the near or long-term?
    4. What tools are currently available to the public that would 
allow them to collect the requested information?
    4a. How would these tools work to support a party's decision from a 
cost effectiveness and timeliness standpoint.

Tier I/II Screening Mechanism Definitions

    The following definitions support terms identified in the Tier I, 
Tier II, and Process sections above:
    Background: the level of a hazardous substance that provides a 
defensible reference point that can be used to evaluate whether or not 
a release from the site has occurred. The background level should 
reflect the concentration of the hazardous substance in the medium of 
concern for the environmental setting on or near a site. Background 
level does not necessarily represent pre-release conditions, nor 
conditions in the absence of influence from the source(s) at the site. 
A background level may or may not be less than the detection limit 
(DL), but if it is greater than the DL, it should account for 
variability in local concentrations. A background level need not be 
established by chemical analysis. Hazard Ranking System Guidance 
Manual, Interim Final, pp. 55 and 57.
    Bioaccumulation: the tendency of a hazardous substance to be taken 
up and accumulated in the tissue of aquatic organisms, either from 
water directly or through consumption of food containing the hazardous 
substance. Hazard Ranking System Guidance Manual, Interim Final, p. 
294; Rand, Gary M., and Sam R. Petrocelli, Fundamentals of Aquatic 
Toxicology, 1985, p. 652.
    Definitive Data: data that are documented as appropriate for 
rigorous uses that require both hazardous substance identification and 
concentration. Definitive data are often used to quantify the types and 
extent of releases of hazardous substances. Guidance for Performing 
Site Inspections Under CERCLA, Interim Final, p. 99; Guidance for Data 
Useability in Site Assessment, Draft, pp. 13 and 14.
    Drinking Water Supply: any source of water (surface or ground) that 
is currently used or could be used to supply potable water. Guidance 
for Performing Site Inspections Under CERCLA, Interim Final, p.118; 
Hazard Ranking System Guidance Manual, Interim Final, p. 116.
    Facility: any building, structure, installation, equipment, pipe or 
pipeline (including any pipe into a sewer or publicly owned treatment 
works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage 
container, motor vehicle, falling stock, or aircraft, or any site or 
area where a hazardous substance has been deposited, stored, disposed 
of, or placed, or otherwise come to be located; but does not include 
any consumer product in consumer use or any vessel. CERCLA section 
101(9).
    Ground Water: water in a saturated zone or stratum beneath the 
surface of land or water. CERCLA section 101(12).
    Hazard Ranking System: scoring system used by EPA's Superfund 
program to assess the relative threat between sites associated with 
actual or potential releases of hazardous substances. It is a screening 
tool for determining whether a site is to be included on the National 
Priorities List. Hazard Ranking System Guidance Manual, Interim Final, 
p.1.
    Hazardous Substance: CERCLA hazardous substances, pollutants, and 
contaminants as defined in CERCLA section 101(14) and 101(33), except 
where otherwise specifically noted in the HRS. 40 CFR 300, Appendix A 
(Hazard Ranking System), Section 1.0.
    Human Exposure: any exposure of humans to a release of one or more 
hazardous substances via inhalation, ingestion, or dermal contact. 
Amdur, Mary O., John Doull, and Curtis D. Klaassen, Toxicology, The 
Basic Science of Poisons, Fourth Edition, 1991, p. 14; Hazard Ranking 
System Guidance Manual, Interim Final, pp. 153, 259, 293, 317, 363, and 
411.
    Nearby Populations: regularly present residents, workers, and 
students and sensitive environments located on or within 1 mile from 
the boundaries of a hazardous substance release. 40 CFR 300, Appendix A 
(Hazard Ranking System), section 5.2.
    Populated Area: any area occupied by a regularly present resident, 
student, or worker and/or sensitive environment. Populated areas do not 
include transient populations such as business patrons or travelers 
passing through the area. Hazard Ranking System Guidance Manual, 
Interim Final, p. 412; 40 CFR 300, Appendix A (Hazard Ranking System), 
section 3.3.2.
    Release: any spilling, leaking, pumping, pouring, emitting, 
emptying, discharging, injecting, escaping, leaching, dumping or 
disposing into the environment (including the abandonment or 
discharging of barrels, containers, and other closed receptacles 
containing any hazardous substance or pollutant or contaminant). CERCLA 
section 101(22).
    Screening Data: data that are appropriate for applications that 
only require determination of gross contamination areas and/or for site 
characterization decisions that do not require quantitative data. 
Screening data are often used to specify which areas to sample to 
collect definitive data. Guidance for Performing Site Inspections Under 
CERCLA, Interim Final, pp. 99 and 100; Guidance for Data Useability in 
Site Assessment, Draft, p. 15.
    Sensitive Environments: consist of environmental receptors 
recognized in 40 CFR 300, Appendix A (Hazard Ranking System), Table 4-
23, Table 5-5, and wetlands as defined by 40 CFR 230.3.
    Site: area(s) where a hazardous substance has been deposited, 
stored, disposed, or placed, or has otherwise

[[Page 47506]]

come to be located. Such areas may include multiple sources and may 
include the area between sources 40 CFR 300, Appendix A (Hazard Ranking 
System), Section 1.0. The site is neither equal to nor confined by the 
boundaries of any specific property that may give the site its name. 60 
FR 190, p. 51391.
    Surface Waters: water present at the earth's surface. Surface water 
includes rivers, lakes, oceans, ocean-like water bodies, wetlands, and 
coastal tidal waters, which include embayments, harbors, sounds, 
estuaries, back bays, lagoons, wetlands, etc. seaward from mouths of 
rivers and landward from the baseline of the Territorial Sea. 40 CFR 
300, Appendix A (Hazard Ranking System), section 4.0.2.
    Wetlands: a type of sensitive environment defined in 40 CFR 230.3 
as ``* * * those areas that are inundated or saturated by surface or 
ground water at a frequency and duration sufficient to support, and 
under normal circumstances do support, a prevalence of vegetation 
typically adapted for life in saturated soil conditions.'' Wetlands can 
be natural or man-made. Wetlands generally include swamps, marshes, 
bogs, and similar areas. Hazard Ranking System Guidance Manual, Interim 
Final, p. A-20.

[FR Doc. 97-23831 Filed 9-8-97; 8:45 am]
BILLING CODE 6560-50-P