Superfund: EPA Should Take Steps to Improve Its Management of Alternatives to Placing Sites on the National Priorities List
Published: 2013-04-09T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Under the Superfund program, EPA may address the long-term cleanup of certain hazardous waste sites by placing them on the NPL and overseeing the cleanup. To be eligible for the NPL, a site must be sufficiently contaminated, among other things. EPA regions have discretion to choose among several other approaches to address sites eligible for the NPL. For example, under the Superfund program, EPA regions may enter into agreements with PRPs using the SA approach. EPA may also defer the oversight of cleanup at eligible sites to approaches outside of the Superfund program. GAO was asked to review EPA's implementation of the SA approach and how it compares with the NPL approach. This report examines (1) how EPA addresses the cleanup of sites it has identified as eligible for the NPL, (2) how the processes for implementing the SA and NPL approaches compare, and (3) how SA agreement sites compare with similar NPL sites in completing the cleanup process. GAO reviewed applicable laws, regulations, and guidance; analyzed program data as of December 2012; interviewed EPA officials; and compared SA agreement sites with 74 NPL sites selected based on their similarity to SA agreement sites.
section_title: What GAO Found
paragraphs: The Environmental Protection Agency (EPA) most commonly addresses the cleanup of sites it has identified as eligible for the National Priorities List (NPL) by deferring oversight of the cleanup to approaches outside of the Superfund program. As of December 2012, of the 3,402 sites EPA identified as potentially eligible, EPA has deferred oversight of 1,984 sites to approaches outside the Superfund program, including 1,766 Other Cleanup Activity (OCA) deferrals to states and other entities. However, EPA has not issued guidance for OCA deferrals as it has for the other cleanup approaches. Moreover, EPA's program guidance does not clearly define each type of OCA deferral or specify in detail the documentation EPA regions should have to support their decisions on OCA deferrals. Without clearer guidance on OCA deferrals, EPA cannot be reasonably assured that its regions are consistently tracking these sites or that their documentation will be appropriate or sufficient to verify that these sites have been deferred or have completed cleanup. Under the Superfund program, EPA oversees the cleanup of 1,313 sites on the NPL, 67 sites under the Superfund Alternative (SA) approach, and at least 38 sites under another undefined approach.
The processes for implementing the SA and NPL approaches, while similar in many ways, have several differences. EPA has accounted for some of these differences in its SA guidance by listing specific provisions for SA agreements with potentially responsible parties (PRP), such as owners and operators of a site. One such provision helps ensure cleanups are not delayed by a loss of funding if the PRP stops cleaning up the site. However, some EPA regions have entered into agreements with PRPs at sites that officials said were likely eligible for the SA approach without following the SA guidance. Such agreements may not benefit from EPA's provisions for SA agreements. EPA headquarters officials said the agency prefers regions to use the SA approach at such sites, but EPA has not stated this preference explicitly in its guidance. In addition, EPA's tracking and reporting of certain aspects of the process under the SA approach differs from that under the NPL approach. As a result, EPA's tracking of SA agreement sites in its Superfund database is incomplete; the standards for documenting the NPL eligibility of SA agreement sites are less clear than those for NPL sites; and EPA is not publicly reporting a full picture of SA agreement sites. Unless EPA makes improvements in these areas, its management of the process at SA agreement sites may be hampered.
The SA agreement sites showed mixed results in completing the cleanup process when compared with 74 similar NPL sites GAO analyzed. Specifically, SA agreement and NPL sites in GAO's analysis showed mixed results in the average time to complete negotiations with PRPs and for specific cleanup activities, such as remedial investigation and feasibility studies, remedial designs, and remedial actions. In addition, a lower proportion of SA agreement sites have completed cleanup compared with similar NPL sites. SA agreement sites tend to be in earlier phases of the cleanup process because the SA approach began more recently than the NPL approach. Given the limited number of activities for both NPL and SA agreement sites in GAO's analysis, these differences cannot be attributed entirely to the type of approach used at each site.
section_title: What GAO Recommends
paragraphs: GAO recommends, among other things, that EPA issue guidance to define and clarify documentation requirements for OCA deferrals and clarify its policies on SA agreement sites. EPA agreed with the report's recommendations.

section_title: Letter
paragraphs: The Environmental Protection Agency (EPA) estimates that one in four  Americans lives within 3 miles of a hazardous waste site. Many  hazardous waste sites pose serious risks to human health and the  environment, and their cleanup can be expensive and take many years to  complete. While these sites may not necessarily be subject to a federal  cleanup requirement, several approaches exist to address such long-term  cleanups. EPA manages the Superfund program—the federal  government’s principal program to clean up hazardous waste sites— under the Comprehensive Environmental Response, Compensation, and  Liability Act (CERCLA) of 1980. Under this program, EPA can place sites  with contamination that is sufficiently severe on the National Priorities List  (NPL), a list of sites for attention under the federal Superfund program  that includes sites among the nation’s most seriously contaminated. At  sites on the NPL, EPA oversees the cleanup, which may be performed by  potentially responsible parties (PRP) or by EPA itself. Aside from placing  an eligible site on the NPL, EPA can also ensure cleanup through the  Superfund Alternative (SA) approach. Under this approach, PRPs agree  to clean up sites (hereafter referred to as SA agreement sites), and EPA  does not list the sites on the NPL at that time, which allows PRPs to avoid  the perceived stigma of having a site on the NPL. Since EPA first issued  guidance on the SA approach in 2002, EPA and its Office of Inspector  General (IG) have evaluated the approach and made various  recommendations to improve its implementation. In 2010, EPA reported  to the IG that it had implemented the recommended actions. Where EPA  decides not to address the site under the Superfund program (i.e., list the  site on the NPL, use the SA approach, or otherwise retain oversight),  EPA may defer sites whose contamination makes them eligible for the  NPL to other federal and state cleanup approaches.
EPA’s regional offices may discover potential hazardous waste sites, or  such sites may come to EPA’s attention through reports from other  federal agencies, state agencies, or citizens. EPA then reviews available  information about each site to decide whether to add it to the Superfund  program database—the Comprehensive Environmental Response,  Compensation, and Liability Information System (CERCLIS). At some  point after a site is added to CERCLIS, EPA assesses the severity of the  contamination at the site to determine whether the site is eligible to be  placed on the NPL. If the site has some contamination but is not eligible  for the NPL, EPA will not pursue a long-term cleanup under the  Superfund program; state cleanup programs or other programs may still  address the contamination at the site. Long-term cleanups at sites eligible  for the NPL that are conducted under the Superfund program generally  follow an established process. This process consists of several phases,  including studying site conditions, selecting a method to clean up the site,  and conducting the actual cleanup. In some cases, cleanup of a site is  divided into smaller parts, known as operable units, and cleanup may  proceed at different rates at each of these operable units. To accomplish  the cleanup, EPA may, among other options, negotiate and enter into  agreements with PRPs for them to address contamination at the site.  These agreements may cover one or more phases of the cleanup  process and may address one or more operable units. Furthermore, EPA  may enter into more than one agreement with a PRP at a site. Alternately,  for sites listed on the NPL, EPA may conduct the cleanup itself and  pursue costs from PRPs through administrative or judicial actions.
In addition to conducting long-term cleanups, EPA may use its Superfund  emergency response authorities to conduct removal actions at sites.  Removal actions are usually short-term cleanups at sites that pose  immediate threats to human health or the environment. Under the  removal program, EPA has conducted thousands of cleanup actions  instead of or in combination with long-term cleanups.
In this context, you asked us to review the implementation of the SA  approach and how this approach compares to listing sites on the NPL.  Our objectives were to examine (1) how EPA addresses the cleanup of  sites it has identified as eligible for the NPL, (2) how the processes for  implementing the SA and NPL approaches compare, and (3) how SA  agreement sites compare with similar NPL sites in completing the cleanup  process.
To conduct this work, we analyzed applicable federal laws and EPA  regulations and guidance to understand the available approaches to  address hazardous waste sites that are reported to the Superfund  program and have a level of contamination that makes them eligible for  the NPL. We also conducted interviews with officials in all 10 EPA  regions. To determine how EPA addresses the cleanup of sites eligible  for the NPL, we analyzed EPA data from the CERCLIS database to  establish the number of such sites that are being addressed through each  approach as of December 2012. To assess the reliability of these data,  we analyzed related documentation, examined the data for errors or  inconsistencies, and interviewed agency officials about any known data  problems and to learn more about their procedures for maintaining the  data. We determined the data to be sufficiently reliable for calculating  durations for completing different cleanup activities, including  negotiations, at SA agreement and NPL sites. We also interviewed a  nonprobability, convenience sample of officials from 13 state cleanup  programs who were familiar with available cleanup approaches. The  sample consisted of representatives from state environmental  departments taking part in an Association of State and Territorial Solid  Waste Management Officials conference call who agreed to speak with  us. Because this was a nonprobability sample, the results of our analysis  cannot be generalized to all states; however, these officials provided  important information about the cleanup process. To compare the  processes for implementing the SA and NPL approaches, including the  cleanup process and EPA’s oversight, we discussed the processes with  EPA headquarters officials and officials from all 10 of EPA’s regions,  obtained relevant supporting documentation, and analyzed previous  reviews of the SA approach. To determine how SA agreement sites  compare with similar NPL sites in completing the cleanup process, we  constructed a comparison group of 74 NPL sites with agreements  between EPA and PRPs similar to agreements at 66 SA agreement  sites. For example, all sites had agreements that were entered into from  June 2002 through December 2012 that involved cleanup actions at the  site. Additionally, to match the characteristics of most SA agreements, we  included only NPL agreements involving relatively few PRPs and  agreements whose estimated costs were similar to costs at SA  agreement sites. Once we identified the group of NPL sites from these  agreements, we compared the duration of relevant cleanup actions,  including negotiations, with those at SA agreement sites. The 74 NPL  sites that were selected for comparison with SA agreement sites are not  representative of the universe of all NPL sites because they were  selected based on specific criteria. For example, we selected for  comparison only NPL sites at which a PRP agreed to conduct at least  some part of the cleanup. The results of our analysis cannot be  generalized to all NPL sites; however, these sites can provide important  information about the cleanup process. Appendix I provides a more  detailed description of our objectives, scope, and methodology.
We conducted this performance audit from December 2011 to April 2013  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
subsections: section_title: Background
paragraphs: This section discusses EPA’s process for assessing sites under the  Superfund program and the approaches identified by EPA for conducting  long-term cleanups at sites eligible for the NPL under the Superfund  program and under other available approaches.
subsections: section_title: EPA’s Process for Assessing Sites under the Superfund Program
paragraphs: Under the Superfund program, EPA assesses hazardous waste sites for  long-term cleanups through a specific process. At some point after a  potential hazardous waste site is reported to the Superfund program and  entered into CERCLIS, EPA regional officials, their contractors, or states  acting under cooperative agreements with EPA evaluate the relative  potential for a site to pose a threat to human health and the environment.  EPA’s 10 regional offices each are responsible for implementing  Superfund within several states and, in some cases, territories. Under  CERCLA, EPA may only pay for a remedial action at a site if the relevant  state agrees, among other things, to pay a portion of the cleanup  expenses, as well as all operations and maintenance costs. In addition,  under a cooperative agreement with EPA, a state may assume the lead  oversight role at a site in the Superfund program. Figure 1 shows the  states included in each of the 10 EPA regions.
During the initial phases of the long-term cleanup process—known as  preliminary assessment and site inspection—EPA regional officials or  their counterparts evaluate the potential need for additional investigation  or action in connection with a release of hazardous substances from a  site. Specifically, the preliminary assessment phase involves an  evaluation of readily available information about a site and its surrounding  area to determine if the release or potential release poses enough of a  threat to human health and the environment that further investigation is  needed. If further investigation is needed, a site inspection is performed.  During this phase, investigators typically collect environmental and waste  samples to determine what hazardous substances are present.  Information collected during the preliminary assessment and site  inspection is used to calculate and document a site’s preliminary Hazard  Ranking System score, which indicates a site’s relative threat to human  health and the environment based on potential pathways of   Sites with a Hazard Ranking System score of 28.50 or  contamination.greater are eligible for listing on the NPL. Information collected from the  initial assessment phases to develop Hazard Ranking System scores is  not intended to be sufficient to determine either the extent of  contamination or how to clean up a particular site. After a site is  determined to be eligible for the NPL, EPA chooses which long-term  cleanup approach is best suited to the site. In some cases, EPA may  conduct a short-term cleanup known as a removal action or otherwise  delay selection of a long-term cleanup approach.
section_title: Approaches Identified by EPA for Conducting Long- Term Cleanups at Sites Eligible for the NPL
paragraphs: EPA may choose among several approaches to address sites with a  relative threat to human health and the environment that is sufficiently  severe to make them eligible for listing on the NPL. For long-term  cleanups, EPA can retain oversight of sites under the Superfund program  or defer the oversight of sites to other approaches, as shown in figure 2.
Under its Superfund program, EPA conducts long-term cleanups using  three approaches. The first and most common approach under the  Superfund program involves listing a site on the NPL. To do so, EPA first  proposes the site for listing on the NPL in the Federal Register. EPA then  accepts public comments on the proposal and responds to the comments  in a second and final Federal Register listing announcement of the site;  then the agency may place on the NPL those sites that continue to meet  the requirements for listing. The second approach that EPA may use  under the Superfund program is the SA approach, which began informally  in the 1990s whereby some EPA regions negotiated site cleanup  agreements with PRPs for sites that PRPs, states, or local government  officials and communities did not want to have listed on the NPL. To  promote consistency across regions, EPA issued guidance in 2002  formalizing the SA approach, which it subsequently updated in 2004 and  2012. According to EPA’s guidance, to qualify for the SA approach, (1)  a site’s contamination must make it eligible for listing on the NPL; (2) EPA  must anticipate a long-term cleanup at the site; and (3) there must be a  willing, capable PRP who will negotiate and sign an agreement with EPA  to perform the investigation or cleanup. The third approach EPA can use  for long-term cleanup of sites is to address sites under the Superfund  program but not list them on the NPL or address them through the SA   These “Other” sites under the Superfund program can vary  approach.widely and include, among others, some sites with cleanup agreements  that preceded the SA approach. Under these older agreements, for which  there was no guidance at the time they were negotiated, EPA agreed not  to list the site on the NPL, and the PRPs agreed to conduct the cleanup,  according to EPA officials.
Irrespective of the approach chosen, all sites under the Superfund  program approaches follow the same general phases for long-term  cleanup, as shown in figure 3, and EPA officials oversee the cleanup at  all of these Superfund sites.
After the initial phases of the long-term cleanup process, EPA or a PRP  conducts a two-part study of the site: (1) a remedial investigation to  further characterize site conditions and assess the risks to human health  and the environment, among other actions, and (2) a feasibility study to  evaluate various cleanup options to address the problems identified in the  remedial investigation. At the conclusion of these studies, EPA selects a  remedy for addressing the site’s contamination and develops a cost  estimate for implementing the remedy; both of these are included in a  record of decision. According to EPA officials, the level of cleanup  depends on site-specific conditions, not the particular approach selected.  EPA or a PRP then develops the method of implementation for the  selected remedy during the remedial design phase and implements it  during the remedial action phase, when actual cleanup of the site occurs.  Multiple cleanup activities can occur within a given phase at the same or  different operable units at one site. For example, one remedial action at  an operable unit may address soil contamination, while another remedial  action at the same operable unit may address groundwater  contamination. When EPA or a PRP finishes the cleanup remedy at a  site, all immediate threats have been addressed, and all long-term threats  are under control, EPA generally considers the site to be “construction  complete.” For sites listed on the NPL, when EPA, in consultation with the  state, determines that no further site response is appropriate, the agency  may delete the site from the NPL. EPA reports achievements at NPL  sites, including completion of some phases of the cleanup process, as  part of the agency’s implementation of provisions under the Government  Performance and Results Act of 1993 (GPRA). The act requires federal  agencies to develop strategic plans with outcome oriented agency goals  and objectives, performance measures to track the progress made toward  achieving goals, annual goals linked to achieving the long-term goals, and  annual reports on the results achieved. EPA does not report publicly the  same achievements for sites that are not on the NPL.
CERCLA § 122(a), 42 U.S.C. § 9622(a) (2012).
Department of Justice in seeking an injunction to require PRPs to conduct  cleanup.
Pub. L. No. 94–580, 90 Stat. 2795 (1976) (codified as amended at 42 U.S.C. §§6901- 6992k (2012)). Although RCRA amended the Solid Waste Disposal Act, Pub. L. No. 89– 272, Title II, 79 Stat. 997 (1965), the amended law is nonetheless sometimes referred to  as RCRA, a convention we follow here. Subtitle C of RCRA, 42 U.S.C. ch. 82, subch. III  (§§ 6921-6939f), governs hazardous waste management. Hereinafter, references are to  RCRA as amended. formal state deferral approach, the EPA region still negotiates the level of  oversight appropriate for the particular site.
EPA may also defer oversight of the long-term cleanup of a site eligible  for the NPL through the Other Cleanup Activity (OCA) approach. OCA  deferrals go to one of four types of entities (described below): states,  federal agencies, tribes, or private parties.
OCA deferral to a state places a site under that particular state’s  environmental regulations, as opposed to CERCLA authorities. In  contrast to formal state deferrals, the OCA deferral to a state involves  no formal EPA oversight other than periodic discussions between  EPA regional officials and state officials. Since 2012, EPA guidance  has indicated regions should have these discussions.
OCA deferral to federal agencies places a site under that particular  federal agency’s oversight and authorities, according to EPA. Certain  federal agencies, such as the Department of Defense, have  responsibility and authority for some or all cleanups at their facilities.  EPA assigns a status of “Other Cleanup Activity: Federal Facility  Lead” to federal facilities that EPA tracks in its CERCLIS database  and are being cleaned up outside of the NPL approach (these sites  are eligible for listing but are not listed on the NPL). EPA periodically  checks in with other federal agencies on the status of cleanup work at  these sites.
OCA deferral to a tribe places the site under that tribe’s environmental  regulations. EPA periodically checks in with tribal regulators on the  status of cleanup work at these sites.
OCA deferral to private parties applies to certain sites where the  cleanup is conducted by a private party.
section_title: EPA Defers Oversight of a Majority of Sites Eligible for the NPL to Approaches Outside of the Superfund Program
paragraphs: EPA most commonly addresses the cleanup of sites eligible for the NPL  by “deferring” oversight to approaches outside of the Superfund program.  EPA regions select the cleanup approach and defer oversight of more  than half the sites eligible for the NPL to approaches outside of the  Superfund program, primarily through OCA deferrals. Though OCA  deferrals include the majority of NPL eligible sites, EPA’s guidance on this  approach is less detailed than guidance on other approaches.
subsections: section_title: EPA Regions Exercise Discretion in Selecting the Cleanup Approach for Sites
paragraphs: EPA provides regions with discretion in selecting the cleanup approach  for a given hazardous waste site. According to the Superfund Program  Implementation Manual—which lists EPA’s Superfund program  management priorities, procedures, and practices—each region is to  select an appropriate cleanup approach after determining a site is eligible  for the NPL. Officials in all 10 regions said that when they select cleanup  approaches they attempt to use the most appropriate cleanup approach  for a given site. For example, complex sites, such as contaminated  waterways, may be more suited to the NPL approach than to deferral to a  state cleanup program because EPA typically has more resources to  oversee and manage such complex cleanups. Officials in four regions  noted that states will sometimes request the NPL approach for large or  complex sites.
EPA regions can establish their own processes for selecting a cleanup  approach for a given site. Three of the 10 regions have some type of  regional guidance related to their decision-making process. For example,  Region 7 has guidance for its regional decision team that outlines the  stakeholders within the region who will participate, when the team will  meet, and how decisions are to be made at the meeting. Region 10 has  guidance that focuses on how the region will prioritize sites that are  eligible for the NPL. All of the regions may consult with relevant  stakeholders across EPA programs about a given site, whether the  regions have written guidance or not. These stakeholders might include  staff from the office of regional counsel or the removal program. Five of  the 10 regions use regional decision teams to evaluate sites that have  been found eligible for the NPL and select which approach should be  used to clean up the site. The other 5 regions do not use regional  decision teams, opting instead for more informal decision-making  processes or meetings on an as-needed basis. For example, in Region 5  there is a practice of coordinating between the region’s long-term cleanup  and removal programs on sites that may be of interest to both programs.
EPA officials said the regions consider many potentially relevant factors  to select the appropriate approach for each site. The major factors  influencing regional officials’ choice of cleanup approach at a site include  the preferences of the state regarding how the site will be addressed and  the existence of a PRP that is willing to and capable of addressing the  site. Specifically, officials in all 10 regions highlighted state preference as  a factor they consider. State preference can be particularly important  because EPA has a policy of obtaining state concurrence before listing a  site on the NPL. According to Region 5 officials, if a state opposes an  NPL listing, they will typically give preference to other approaches, such  as an OCA deferral to the state or the SA approach. In addition to state  preference, officials in 9 of 10 regions said that the existence of a willing  and capable PRP can be a factor in determining the cleanup approach.  For example, a willing and capable PRP is necessary for the SA  approach, which requires the PRP to conduct the cleanup under an  agreement with EPA. EPA officials in one region said that the existence of  a PRP can also be important for cleanups under state cleanup programs  because states can have very limited funding to conduct cleanups on  their own. State environmental officials from four states we contacted  confirmed that they had limited or, in some cases, no state funding to  conduct their own long-term cleanups.
Regional officials also identified other factors that can sometimes  influence what cleanup approach the region will select. For example,  officials in Region 5 noted that if the contamination presents an  immediate threat to health and safety, they may use the Superfund  removal program, which is more suited to a quick response than long- term cleanup approaches. Depending on the circumstances at a site, the  removal program may be sufficient to deal with all of the contamination, or  the site may need to be referred to a long-term cleanup approach for  further work. Regional officials can also consider other relevant legal  authorities that could apply to a site, such as RCRA. When a site is  eligible for cleanup under both RCRA and Superfund, EPA policy  provides that the agency generally will defer the site to the RCRA  program for cleanup.
section_title: EPA Defers Oversight of More Than Half the Sites Eligible for the NPL to Approaches Outside of the Superfund Program
paragraphs: Among the 3,402 sites reported to the Superfund program in CERCLIS  that EPA has identified as having contamination making them eligible for   EPA deferred 1,984 sites to cleanup approaches outside of the  the NPL,Superfund program (see fig. 4). Sites under the Superfund program make  up the 1,418 sites that remain, with the vast majority of those sites being  addressed through the NPL.
EPA addresses more sites eligible for the NPL through the OCA deferral  approach than any other cleanup approach: 1,766 of the 3,402 sites (52  percent). Moreover, because EPA deferred most of these 1,766 sites to  states, OCA deferrals to states account for about 47 percent of all  identified eligible sites. EPA regions’ use of OCA deferrals to states  ranges widely, from 7 sites in each of three regions (6, 7, and 8) to 470  sites in Region 1 (see app. II for a breakdown of cleanup approaches by  region). According to officials in Region 1, states in the region have  mature environmental programs willing and capable of overseeing many  sites, which makes the OCA deferral to states well suited to that region. In  contrast, officials we spoke to in some regions noted that they needed to  consider states’ capacity to oversee a site before using the OCA deferral  to states. Nine states have no OCA deferrals, and other states oversee  hundreds of these sites, with the most in Massachusetts (247 sites), New  Jersey (221), and California (180). Environmental officials in several  states we contacted confirmed that states’ use of and experience with  OCA deferrals can differ substantially. One state official noted that these  differences are likely related to how industrialized a state may be and the  extent of cleanup programs in a given state. OCA deferrals to federal  agencies, private parties, and American Indian tribes account for an  additional 181 sites. OCA deferrals to federal agencies primarily involve  military sites: 76 percent of these deferrals were to the Army, Navy, or Air  Force. In addition, a majority of OCA deferrals to private parties come  from Florida where, on the basis of a state law, PRPs can conduct  cleanup without any formal agreement or order from the state, according  to Region 4 officials. PRPs conducting such cleanups must submit regular  reports to the state on their progress, and the state reserves the right to  take the PRP to court, if necessary.
EPA currently addresses 1,418 sites (42 percent of those identified as  eligible for listing on the NPL) through approaches under the Superfund  program—most commonly, through listing the sites on the NPL.  Specifically, sites listed on the NPL account for 1,313 sites, over 90   According to officials in  percent of sites under the Superfund program.one region, EPA has access to more resources than states and typically  addresses sites that require greater or more specialized resources  through the NPL approach. For example, regional officials noted, states  face different limitations that can prevent them from pursuing cleanup  under their programs including: technical capacity, legal resources, and  financial resources. In addition, EPA officials in four regions noted  examples where a state environmental program requested that the  Superfund program pursue NPL listing because the state was having  trouble getting a PRP to cooperate or the PRP went bankrupt.
In addition to listing sites on the NPL, EPA also oversees the long-term  cleanup of sites through two other approaches under the Superfund  program. First, the Superfund program currently oversees 67 sites under  the SA approach. Second, EPA oversees at least 38 other sites with  long-term cleanups under the Superfund program for which EPA has no  documented definition and no consistently applied method of counting.  EPA officials provided different estimates of the number of such sites.  One EPA official provided a method to identify these sites based on a  code in CERCLIS, which resulted in the 38 sites listed above. However,  another EPA official provided us a list of 35 such sites that had reached  the remedial action phase. Of these 35 sites, 12 matched the 38 sites  identified by the code in CERCLIS. In addition, 16 of the sites on the list  of 35 had a code of “status undetermined” or had no code at all. EPA  regional officials also identified other specific sites under the Superfund  program, but some of those sites could not be identified by the code in  CERCLIS, were not on the list of 35, or had no code at all. As of  December 2012, 270 sites had the “status undetermined” code, and 101  had no such code in CERCLIS, making it impossible to determine the  exact number of sites that EPA oversees under the Superfund program  that are not being addressed under either the NPL or SA approaches.  Tracking of these sites is discussed later in this report.
EPA addressed the remaining sites eligible for the NPL through different  deferral approaches, primarily through deferrals to the RCRA program.  Specifically, deferrals to the RCRA program account for 193 of these  remaining sites (89 percent).program and a few deferrals to NRC, EPA deferred 21 sites to state  programs using the formal state deferral approach in 4 of its 10 regions.  EPA officials said that the OCA deferral to states approach has largely  replaced the formal state deferral approach, and EPA does not anticipate  using the formal deferral approach much in the future.
section_title: EPA Has Less Detailed Guidance for OCA Deferrals Than for Other Less Commonly Used Deferral Approaches
paragraphs: As discussed above, EPA addresses more sites through OCA deferrals  than any other approach but has less guidance to define this approach or  how deferral decisions should be documented than for its other deferral  approaches. Unlike OCA deferrals, EPA has guidance or other  documents outlining the process for deferrals to the RCRA program,  deferrals to the NRC, and formal state deferrals. These documents clearly  define or provide mechanisms to define the roles of the Superfund  program and the entity that will conduct oversight at the site. For  example, guidance for the formal state deferral approach specifies that  the EPA region and the state should enter into a memorandum of  agreement in which they clarify mutual expectations for their interaction  and each party’s responsibilities at deferred sites. After the deferral, the  region continues to review the state’s progress and conduct any other  activities required by its individual agreements with the state in each  case.
In contrast, EPA has not issued guidance focused on OCA deferrals that  clearly defines the different types of OCA deferrals or what detail would  be sufficient or appropriate to support its decisions at these sites. Instead,  EPA describes OCA deferrals in the Superfund Program Implementation  Manual (which is updated annually). EPA recently added to its  instructions in the manual regarding sites with OCA deferrals. Specifically,  in its 2012 version of the manual, EPA added more language explaining  that there is to be no continuous and substantive involvement on EPA’s  part while cleanup work is ongoing at OCA deferral sites. In addition, in  this version of the manual, EPA added an instruction for regions to check  on the status of OCA sites periodically. Officials in EPA regions noted that  they use different approaches for tracking OCA sites; for example, for an  OCA deferral to states, EPA regions’ tracking activities range from  checking state websites to meeting with states to receive status updates  every 3 months. Officials in some regions noted that they will need to  modify their processes to meet this new instruction.
Even with EPA’s additions to the manual, the available instruction does  not clearly define each type of OCA deferral, particularly OCA deferrals to  private parties, which has resulted in inconsistent identification of those  OCA deferrals by different regions. While the manual defines OCA  deferrals generally, it does not define each type of OCA deferral. When  asked to define OCA deferrals to private parties, Superfund program  officials in headquarters referred us to EPA regional officials for more  information, and officials in 6 of 10 EPA regions were unsure about how  to define OCA deferrals to private parties or how they should be used.
Moreover, officials in another 6 regions confirmed that some sites  identified as OCA deferrals to private parties in CERCLIS should have  been identified as OCA deferrals to states. Without clearer guidance  defining the different OCA deferrals, EPA cannot be reasonably assured  that it is consistently tracking its OCA deferral sites in CERCLIS, which  can make it difficult to identify what entity is responsible for conducting  oversight at the site.
The completion of cleanup date at an OCA deferral site is the date of the determination  that cleanup was successfully completed, that cleanup was not necessary, or that the  other entity will not complete cleanup and the site will be referred back to the Superfund  program. regions collect to support OCA deferrals covers a broad range, including  no written documentation, an e-mail from a state official, letters from state  officials attesting to the cleanup, or a copy of the legal order or agreement  between the state and PRP. Similarly, regions relied on different forms of  documentation, including various e-mails, letters, or reports from state  officials to document the completion of cleanup at OCA deferral sites.  Officials in three regions reported that there was no consistent standard  for documentation within their region. Moreover, Region 9 officials noted  that the region had not tracked the completion of cleanups at OCA  deferrals in CERCLIS in the past and may have no documentation for  some of its older OCA deferral sites. Without guidance that details the  documentation needed to support regions’ OCA deferral decisions, EPA  cannot be reasonably assured that its regions’ documentation will be  appropriate or sufficient to verify that these sites have been deferred or  have completed cleanup. EPA officials noted they were working on  additional guidance for OCA deferrals. However, these officials said that  development of the guidance was in the planning stage; therefore, a draft  of this guidance, detailed information on what will be included in the  guidance, or a planned issuance date for the guidance, were not yet  available.
EPA provides the least detailed guidance for the small number of sites  that are undergoing long-term cleanup under the Superfund program  outside of the SA and NPL approaches. Such sites do not have specific  guidance at the program level, regional level, or a section in the  Superfund Program Implementation Manual describing how they should  be defined or tracked. In contrast, EPA has developed instructions in the  manual for how to track sites cleaned up under the SA approach. EPA  also has guidance for the NPL approach, such as how the agency should  propose, list, and delete sites from the NPL. EPA officials noted that sites  that are cleaned up under the other Superfund program approach often  involve unique situations, making it difficult to establish any guidance that  would cover all possible situations. For example, one of these sites is  using a hybrid approach under both RCRA and CERCLA authorities,  according to an EPA official. However, in 10 cases, regional officials  described these sites as standard cleanups under CERCLA authority that  used standard procedures. While there are unique and standard cases  among sites being cleaned up under the other Superfund program  approach (i.e., outside of the SA and NPL approaches), EPA officials  could not provide a reliable estimate of these other sites because the  agency has no consistently applied method for counting them. Without a  method to identify and track such sites, EPA headquarters has no way to  determine the extent to which regions use this approach or evaluate  regions’ use of this approach. As a result, it will be difficult for EPA  headquarters to hold regions accountable for using the approach.
section_title: Processes for Implementing the SA and NPL Approaches Differ in a Few Significant Ways
paragraphs: The processes for implementing the SA and NPL approaches have  similarities, but also several differences, some of which EPA has  accounted for through specific provisions in its agreements with PRPs at  SA agreement sites. However, some sites may not benefit from EPA’s  efforts to account for these differences. Furthermore, the agency’s  tracking and reporting of SA agreement sites differs significantly from its  tracking and reporting of NPL sites. Using the SA approach at sites has  certain potential advantages for EPA and some PRPs and states, but  communities’ views on this approach are mixed.
subsections: section_title: The SA and NPL Processes Are Similar in Many Ways and EPA Has Accounted for Some Differences Between Them
paragraphs: The processes for implementing the SA and NPL approaches have many  similarities. According to the agency’s SA guidance, at its SA agreement  sites, EPA is to generally act in accordance with the practices normally  followed at sites listed on the NPL. For example, according to EPA  guidance, SA agreement and NPL sites should follow the same  investigation and cleanup processes, including the phases and  milestones of long-term cleanups shown earlier in figure 3. EPA regions  should also use the same response techniques, standards, and guidance  for SA agreement sites as they do for NPL sites. According to EPA’s  guidance, SA agreements should eventually achieve cleanup levels that  are comparable to those required at NPL sites. EPA regions should also  take steps to ensure equivalency between the SA and NPL approaches in  the absence of NPL listing.
Despite these similarities, there are certain differences in the overall  processes and EPA’s authority under the NPL and SA approaches.  Through specific provisions in its SA agreements with PRPs, EPA has  sought to make the two approaches comparable by accounting for the  following four key differences:
First, EPA has the authority to pay for remedial actions only at sites  listed on the NPL.include a provision to help ensure cleanups are not delayed by a loss  of funding if the PRP ceases work during the remedial action phase of  cleanup. Specifically, this provision requires the PRP to obtain a  readily available source of funds that the agency can use if it needs to  take over the cleanup work. EPA can use those funds to continue the  work while the agency lists the site on the NPL, if necessary.
To account for this difference, SA agreements
Second, EPA is authorized to provide technical assistance grants that  help communities participate in decision making only at sites that are  listed or proposed for listing on the NPL. An initial grant of up to  $50,000 is available to qualified community groups so they can  contract with independent advisors to help the community understand  technical information about the site. EPA includes a provision in SA  agreements to help ensure that a community’s opportunity to receive  technical assistance at an SA agreement site is comparable to that at  an NPL site. This provision requires the PRPs, with EPA oversight, to  administer and fund a technical assistance plan, under which a  qualified community group can receive up to $50,000 for the same  purposes as a technical assistance grant from EPA.
Third, if a PRP were to clean up an SA agreement site to the extent  that it no longer scored at least 28.50 on the Hazard Ranking System,  according to EPA, it might lose the option of listing the site on the  NPL, a concern that is not present when a site is listed on the NPL. To  prevent this, SA agreements state that the PRP will not challenge  listing the site on the NPL if a partial cleanup of the site results in  changed site conditions. EPA officials noted that this provision gives  the agency assurance that it can step in and clean up the site under  the NPL approach if the PRP were to default on the SA agreement.
Fourth, CERCLA states that an action for natural resource damages  (NRD) at NPL sites must start within 3 years after completion of the  remedial action. This period is longer than the general statute of  limitations for NRD claims, which states that an action must start  within 3 years after the discovery of the loss and its connection with  the contamination. SA agreements contain a provision that clarifies  that the longer statute of limitations for NPL sites also applies to SA  agreement sites.
Even with EPA’s efforts to achieve equivalence of SA agreement and  NPL sites through these provisions, some sites may not benefit from  these efforts because EPA regions have entered into agreements with  PRPs at sites that they said were likely eligible for the SA approach  without following the SA guidance. Agreements at such sites may not, for  example, ensure that a community has access to funds to pay for  technical assistance or that remedial action can continue if a PRP stops  cooperating. Officials from some EPA regions told us they have continued  to enter into agreements with PRPs since 2002 without following the SA  guidance. We identified six sites where this has occurred as follows:  In Region 7, officials entered into an agreement with a PRP to  conduct remedial design and remedial action at a site. Regional  officials stated that the SA approach, which can be suggested for a  site by the PRP or the region, never came up during their discussions  with the PRP.  In Region 10, officials stated that the agreements they had entered  into with PRPs at five sites might qualify for the SA approach but that,  at the time they entered into the agreements, the officials had not  focused on whether the agreements met the SA criteria; rather, they  were focused on obtaining enforceable agreements.
According to EPA headquarters officials, if regions are going to conduct a  long-term cleanup under the Superfund program at a site, but not list it on  the NPL, the agency prefers regions to use the SA approach. EPA  headquarters officials said that they believed this preference was implicit  in the agency’s SA guidance and stated they discussed this preference  with regional officials at periodic meetings; however, they also  acknowledged that this preference is not stated explicitly anywhere in  guidance for the regions. If regions continue to enter into agreements for  some sites without following the SA guidance, these sites may be denied  some of the advantages built into the SA agreements to ensure that the  cleanups will be comparable to those under the NPL approach.
section_title: EPA’s Tracking and Reporting of Certain Aspects of the Process under the SA Approach Differ Significantly from That under the NPL Approach
paragraphs: Some differences remain between the way EPA tracks sites under the SA  and NPL approaches. In CERCLIS, EPA tracks sites’ status in relation to  the NPL regardless of any changes in cleanup approach. Specifically,  sites that have been proposed for listing on the NPL, are currently on the  NPL, have been deleted from the NPL, or have been removed from  proposal can always be identified as such in CERCLIS, which allows EPA  to accurately identify sites that are or have been on the NPL. In contrast,  EPA cannot similarly track an SA agreement site as such if it is  subsequently listed on the NPL. Specifically, EPA currently tracks SA  agreement sites through a single database code identifying only that a  site has an SA agreement, and the identifying code is not maintained in  the database if the site is later added to the NPL. The agency has not  clarified in its guidance when to leave this SA identifying code in place,  and when to remove it, even though the EPA IG recommended in a 2007  report that EPA develop specific instructions on when to use the SA  designation and update the Superfund Program Implementation Manual  (which is updated annually) to incorporate these instructions. According  to the IG report, these instructions should specify that the SA code should  not be removed even if the site is cleaned up or proposed for the NPL, so  that controls over documentation of sites with SA agreements can be  maintained. As the EPA IG pointed out, absence of guidance can result in  poor quality data on the SA universe. While EPA indicated in 2010 that it  would implement this recommendation, the 2012 manual does not  include any instructions about maintaining the SA code. Because EPA  has not implemented the IG’s recommendation, the manner in which the  agency tracks the identity of SA agreement sites in CERCLIS is  incomplete. For example, while an EPA website identifies all sites that  have or have had SA agreements, three sites that had SA agreements  and were later added to the NPL cannot be identified in CERCLIS as  having had SA agreements. As a result, all sites that have had SA  agreements are not identifiable in CERCLIS, which may hamper EPA’s  ability to effectively manage long-term cleanups and track outcomes at  SA agreement sites.
Furthermore, the standards for specifying what documentation is  sufficient to support the Hazard Ranking System score of SA agreement  sites are less clear than those for NPL sites. When sites are proposed for  listing on the NPL, EPA procedure requires they have a Hazard Ranking  System documentation record—a specific document that includes  detailed justification for the Hazard Ranking System score. In contrast,  both the 2004 and 2012 SA guidance state that EPA should have  “adequate documentation” supporting a Hazard Ranking System score of  28.50 or higher but do not define what is meant by “adequate”  documentation or provide criteria for assessing adequacy. The guidance  documents specify that regions may rely on a draft Hazard Ranking  System documentation record or “other adequate documentation,” but do  not provide an explanation of what other documentation might be  adequate. EPA headquarters officials told us that documentation of a  preliminary calculation of the Hazard Ranking System score during the  initial assessment phases would qualify as adequate, and said that this  has been discussed with regional officials during periodic meetings. EPA  officials acknowledged, however, that this interpretation of the guidance  has not been included in any written guidance to the regions. As the EPA  IG pointed out in its 2007 report, consistent and reliable documentation of  Hazard Ranking System scores at SA agreement sites is an internal  control to ensure compliance with the SA guidance and approach.  Under the federal standards of internal control, agencies are to clearly put  in writing (i.e., in management directives, administrative policies, or  operating manuals) internal controls, such as this interpretation of the  guidance, and have them readily available for examination. Without  more specific written guidance, EPA regional officials may not develop  adequate documentation of Hazard Ranking System scores at SA  agreement sites.
In addition to the differences in its tracking, EPA has not reported the  agency’s performance on the progress of cleanup at SA agreement sites  as it has for NPL sites. EPA reports achievements at NPL sites, including  completion of some phases of the cleanup process, as part of the  agency’s implementation of provisions under GPRA, which generally aims  to hold federal agencies accountable for using resources wisely and  achieving program results. Two of the Superfund program’s three GPRA  performance measures—sites where human exposure is under control  and sites that are ready for their anticipated use—refer only to NPL sites.  One additional performance measure tracks the completion of the initial  assessment phases, which generally precede EPA’s decision about  which cleanup approach to use at a site, including the SA or NPL  approach. EPA’s Office of Solid Waste and Emergency Response, which  manages the Superfund program, reports these performance measures  for NPL sites in several annual reports available on EPA’s website.  However, EPA does not include in these reports the cleanup milestones  reached at SA agreement sites, such as how many SA sites have human  exposure under control. The EPA IG recommended in 2007 that EPA  track and report the same GPRA performance measures at SA  agreement sites as it does at NPL sites. As the IG reported, by  measuring and tracking all performance measures at SA agreement sites,  EPA could demonstrate the outcomes of the Superfund program’s work  and provide an incentive to regions by more thoroughly accounting for  their performance. In 2010, EPA indicated that it would implement the  IG’s 2007 recommendation to track and report all Superfund GPRA  performance measures at SA agreement sites using an annual report.  EPA officials noted that the agency has begun tracking Superfund  performance measures for SA agreement sites, but they acknowledged  that EPA is not reporting these results publicly. Until the agency reports  performance information on the progress of cleanup at SA agreement  sites as it does for NPL sites, EPA is not providing the public and  Congress with a full picture of SA agreement sites. Without such  information, Congress lacks complete information on the progress of the  Superfund program to inform its legislative actions, including  appropriations.
section_title: The SA Approach Has Potential Advantages for EPA, Some PRPs, and States, but Communities’ Views on its Benefits Are Mixed
paragraphs: Using the SA or the NPL approach can have advantages or  disadvantages for the parties involved, including EPA, PRPs, states, and  communities. Specifically, using the SA approach generally allows EPA to  avoid at least some of the cost and time associated with listing a site on  the NPL. For example, NPL listing requires preparation of a Hazard  Ranking System documentation record, which is not required for sites  with SA agreements. EPA officials estimated each such record costs an  average of about $65,000 to prepare. In addition, when EPA decides to  propose a site for listing on the NPL, the agency sometimes conducts an  expanded site inspection if further information is necessary to document a  Hazard Ranking System score. EPA officials estimated this step costs  about $92,000 on average. In addition, to list a site on the NPL, EPA has  to work through the formal listing process, including issuing notices in the  Federal Register with a public comment period. This process takes time  to complete, which may affect the progress at the site. In Region 3, EPA  officials stated that the volume of comments received on a particular site  proposed for the NPL, in addition to the likelihood of litigation from one or  more parties if the site were finalized on the NPL, led the region to  address the site through the SA approach.
Some EPA regions have seen the advantages of using the SA approach  more than others. As shown in figure 5, of the 67 SA agreement sites, 57  sites, or 85 percent, are in EPA Regions 4 and 5.
Differences in usage of the SA approach among regions relate to a  region’s specific circumstances and preferences. According to EPA  headquarters officials, Regions 4 and 5 had early experience with SA  agreements and may have been more comfortable in starting new ones  as a result. These two regions have also listed many sites to the NPL  since the SA approach was formalized in 2002. Region 4 officials told us  that they have found that the SA approach is best suited to sites with one  or two PRPs and no questions about the PRPs’ liability or ability to  conduct the investigation or cleanup. They said they have also found that  it is helpful when a PRP has a financial interest in finishing the cleanup  quickly, as in the case of a potential redevelopment project at a site.  Other regions have used the SA approach in limited circumstances. For  example, officials in Region 9 described one case in which they pursued  the SA approach because the state did not want a particular site listed on  the NPL. Two regions—Regions 1 and 2—have never used the SA  approach. Officials in Region 1 explained that few sites that have willing  and capable PRPs and are eligible for the NPL come to the region’s  attention because state programs prefer to take on oversight of such  sites. Region 2 officials said they did not see a reason to use the SA  approach—if a site’s contamination is severe enough, the region will  propose the site to the NPL, unless the state is addressing the site.
Using the SA approach allows PRPs to avoid the perceived stigma  associated with an NPL site, according to EPA officials. Sites with SA  agreements have to meet all of the qualifications of NPL sites, and thus  may have contamination that is just as severe, but the potential stigma of  NPL listing appears to influence PRPs. Officials in 7 of 10 regions  mentioned the stigma of an NPL site as a concern for PRPs. Concerns  about this stigma may also arise when a company is to be sold and does  not want to list an NPL site as part of its liabilities, according to EPA  regional officials. Related to this stigma, EPA officials said they believed  that avoiding listing on the NPL may help local government officials and  PRPs in some cases, such as facilitating a site’s redevelopment or its  financing. Previous reports have also pointed to the potential stigma of  NPL listing as motivation for pursuing a different cleanup approach. For  example, an assessment of the effectiveness of the SA approach in  Region 4 (hereafter referred to as the Region 4 study) found that sites  using the SA approach may have a higher potential for redevelopment  than comparable NPL sites if avoiding this stigma increases PRPs’  financing options and their willingness to redevelop.
In addition, some states generally prefer that EPA not list sites on the  NPL, according to EPA officials, which makes the SA approach more  appealing. According to EPA policy, EPA typically obtains a state’s  concurrence before listing a site on the NPL. Officials in all 10 EPA  regions mentioned the states’ views as one of the factors they used to  determine whether to pursue an NPL listing or other approaches.  Moreover, officials in 4 of 10 regions said there were states in their region  that were generally reluctant to have EPA list sites on the NPL. For  example, Region 9 officials said two of their states generally do not want  EPA to list sites on the NPL; specifically, one of these states wanted to  avoid the associated stigma of having NPL sites in the state.
The SA approach also has advantages and disadvantages for  communities. According to an EPA official, it may be easier for  communities to obtain technical assistance funds from PRPs at SA  agreement sites than to obtain the equivalent funds from EPA at NPL  sites. This official said obtaining funds from PRPs at SA agreement sites  often involved the absence of a “match” requirement as well as fewer  paperwork requirements for the communities because the technical  assistance plans do not have to follow federal grant requirements.  However, under the SA approach, communities have no opportunity for a  formal comment process on EPA’s selection of the SA approach itself, as  they do under the NPL approach. Specifically, when EPA proposes a site  for the NPL in the Federal Register, the public has 60 days to comment  on the proposed listing. EPA then responds in writing to significant public  comments in conjunction with the final Federal Register listing  announcement of the site. No such opportunity exists when EPA decides  to enter into an SA agreement at a site, although EPA provides numerous  opportunities under the SA approach for communities to comment on the  cleanup process.
Communities also may have mixed reactions to the SA approach for other  reasons as well. According to EPA officials, communities may have  concerns about the SA approach and may require outreach from the  agency to explain the approach. For example, at one site in Region 5, the  region expanded its outreach efforts after some community members  protested the use of the SA approach at the site. A regional official  explained that some individuals in the community believed the site would  not follow the same cleanup process as an NPL site. Some community  members may support listing on the NPL over the SA approach to bring  increased attention to a site, helping to ensure its cleanup. Other regional  officials said other community members may be more open to the SA  approach and oppose listing on the NPL for fear of its effect on property  values. The Region 4 study confirmed that the SA approach is often  considered advantageous by community members and leaders  concerned about property values and stigma. However, this report also  found that other community members require confirmation that the  process will not result in more limited resources or reduced remediation  compared to listing on the NPL.
section_title: SA Agreement Sites Showed Mixed Results in Completing the Cleanup Process When Compared with Similar NPL Sites
paragraphs: For sites with agreements from June 2002 through December 2012, SA  agreement sites and similar NPL sites we selected showed mixed results  in the time needed to complete negotiations for agreements, specific  cleanup activities, and achieving the construction completion milestone  (see app. I for more details on our objectives, scope, and methodology  and app. III for more information on our results). Specifically, SA  agreement and NPL sites in our analysis showed mixed results in the  average time to complete negotiations with PRPs and for specific cleanup  activities, such as remedial investigation and feasibility studies, remedial  designs, and remedial actions. In addition, a lower proportion of SA  agreement sites have reached construction completion compared with  similar NPL sites. SA agreement sites tend to be in earlier phases of the  cleanup process because the SA approach began more recently than the  NPL approach.
For agreements finalized from June 2002 through December 2012 at  sites in our analysis, SA agreement and similar NPL sites showed mixed  results in the length of time to complete negotiations, with SA agreement  sites taking about as long as similar NPL sites for remedial investigation  and feasibility study negotiations and less time for remedial design and  remedial action negotiations. EPA regional officials confirmed that  negotiations can be faster at SA agreement sites because the PRPs are  more cooperative. For example, Region 4 officials highlighted one SA  agreement site where the PRP pushed for a quicker negotiation process  by turning in documents ahead of deadlines, unlike many other PRPs. In  another case, Region 5 officials said they negotiated three SA  agreements for remedial investigations and feasibility studies covering 19  sites of a similar nature with the same PRP. Region 5 officials noted that  these negotiations were particularly smooth and cooperative. Moreover,  the Region 4 study also found, based on interviews with PRPs and EPA  officials, that the tone of SA negotiations is more productive than at NPL  sites. However, given the relatively limited number of negotiations for  both NPL and SA agreement sites in our analysis, the differences in the  average length of negotiations cannot be attributed entirely to the type of  approach used at each site.
The SA agreement and similar NPL sites in our analysis showed mixed  results in the length of time it took to complete specific cleanup  activities, remedial investigations and feasibility studies on average and about the  same time for remedial designs and remedial actions. While SA  agreement sites took substantially longer on average than NPL sites to  complete remedial investigations and feasibility studies, these differences  do not appear to be exclusively attributable to the SA and NPL  approaches. For example, several remedial investigations and feasibility  studies at SA agreement sites took a long time to complete due to  individual circumstances at the site, such as dealing with a proposal to  sell on-site materials to a manufacturing company, late participation from  PRPs in the process, or coordination with other cleanup efforts. SA  agreement sites and NPL sites in our analysis took about the same time  on average to complete remedial designs and remedial actions.   with SA agreement sites taking substantially longer for  A lower proportion of SA agreement sites have reached construction  completion compared with similar NPL sites in our analysis (see fig. 6).
Multiple cleanup activities can occur within a given phase at the same or different  operable units at one site. Completion of one cleanup activity, such as a remedial  investigation and feasibility study, does not necessarily mean all work in that phase has  been completed. Our analysis looks at individual activities within given phases.
section_title: Conclusions
paragraphs: EPA regional officials are responsible for choosing the appropriate long- term cleanup approach for sites with contamination that makes them  eligible for the NPL. To do so, they select from among several  approaches, including deferring responsibility for the oversight of site  cleanup outside of the Superfund program. Of these sites deferred  outside of the Superfund program, EPA has deferred about 1,800 sites  through OCA deferrals—more sites than any other approach—but the  agency has not issued guidance focused on this long-term cleanup  approach. Instead, EPA describes OCA deferrals in the Superfund  Program Implementation Manual, which does not clearly define each type  of OCA deferral, particularly OCA deferrals to private parties. This has led  to inconsistent coding of OCA deferrals in CERCLIS by different regions.  Moreover, EPA’s guidance does not specify in detail the documentation  regions should have to support their decisions on OCA deferrals or  completion of cleanup at these sites. As a result, EPA regions collected  varying types and amounts of documentation—including, in some cases,  no documentation—to support OCA deferrals. EPA officials noted they  were currently working on additional guidance for OCA deferrals, but they  had not set an issuance date for this guidance. Without clearer guidance  on OCA deferrals, EPA does not have reasonable assurance that it can  consistently track its OCA deferral sites in CERCLIS or that its regions’  documentation will be appropriate or sufficient to verify that these sites  have been deferred or have completed cleanup. In addition, EPA officials  could not provide a reliable estimate regarding the number of sites with  long-term cleanups under the Superfund program that are being cleaned  up through approaches other than the NPL and SA approaches—the  “other” Superfund program sites—because there is no consistently  applied method for tracking them. While the agency’s estimates of the  number of such sites is relatively small, without a method to identify and  track such sites, it is difficult for EPA headquarters to determine the  extent to which regions use this other approach under the Superfund  program, evaluate regions’ use of this approach, or hold regions  accountable for using this approach.
Furthermore, EPA guidance has made clear since 2002 that the agency  should try to make SA agreement sites equivalent to NPL sites in terms of  the level of cleanup achieved, among other things. EPA has largely  accomplished this through adherence to the Superfund cleanup process  and by adding certain provisions to SA agreements to address key  differences between the NPL and SA approaches. The agency has not  clarified to regions in its guidance that the SA approach is the preferred  approach for long-term cleanup of sites under the Superfund program not  listed on the NPL. Without clear guidance, agreements at such sites may  be denied some of the advantages built into the SA agreements to ensure  that the cleanups will be comparable to those under the NPL approach.  Also, while EPA accurately identifies NPL sites in CERCLIS, the agency  cannot do the same for SA agreement sites because it has not clarified in  writing when the database code that identifies sites with SA agreements  should remain in place and when it should be removed. In addition, EPA’s  standards for specifying what documentation is sufficient to support the  Hazard Ranking System score at SA agreement sites are less clear than  those for NPL sites. Unless EPA improves its tracking of SA agreement  sites and clarifies its policies, its ability to effectively track outcomes of the  SA approach at these sites and manage long-term cleanups at sites  under the Superfund program may be hampered. Finally, while EPA  reports performance information for NPL sites under GPRA, it does not  report performance information on the progress of cleanup at SA  agreement sites in an equivalent manner. Without such information on SA  agreement sites, Congress lacks complete information on the progress of  the Superfund program to inform its legislative actions, including  appropriations.
section_title: Recommendations for Executive Action
paragraphs: To improve the Superfund program’s management of sites with  contamination that makes them eligible for the NPL, including  management of the SA approach and deferrals of cleanup oversight to  other entities, we recommend that the Administrator of EPA take the  following four actions:
Provide guidance to EPA regions that defines each type of OCA  deferral and what constitutes adequate documentation for OCA  deferral and completion of cleanup.
Develop a method for EPA headquarters to identify and track other  sites with long-term cleanups under the Superfund program (i.e.,  those that are outside of the NPL and SA approaches).
Update EPA’s written policies on SA agreement sites, including taking  steps such as clarifying whether the SA approach is EPA’s preferred  approach for long-term cleanup of sites under the Superfund program  and outside of the NPL, specifying what documentation is sufficient to  support the Hazard Ranking System score at SA agreement sites,  and defining when the database code that identifies sites with SA  agreements should remain in place.
Report performance information on the progress of cleanup at SA  agreement sites in a manner that is equivalent to such reporting for  NPL sites.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to EPA for review and comment. In  written comments, which are included in appendix IV, EPA agreed with  the report’s recommendations and stated that it believes the report  contains substantial useful information. Regarding the first  recommendation, EPA stated that it added more detail on OCA tracking in  its fiscal year 2012 Superfund Program Implementation Manual, but it  acknowledged that more guidance is needed. Regarding the second  recommendation, EPA stated that it agreed with the recommendation  without further comment.  Regarding the third recommendation, EPA said  that it will clarify that the SA approach is generally the agency's preferred  enforcement approach for CERCLA non-NPL sites that are “NPL-caliber,”  where feasible and appropriate. Finally, regarding the fourth  recommendation, EPA stated that it agrees with this recommendation as  it pertains to reporting under GPRA and provided further information on  how EPA reports measures at SA agreement sites. EPA also provided  technical comments on the draft report, which we incorporated as  appropriate.
As agreed with your offices, unless you publicly announce the contents of  this report earlier, we plan no further distribution until 30 days from the  report date. At that time, we will send copies to the Administrator of the  Environmental Protection Agency, the appropriate congressional  committees, and other interested parties. In addition, the report will also  be available at no charge on the GAO website at http://www.gao.gov.
If you or your staff members have any questions about this report, please  contact me at (202) 512-3841 or trimbled@gao.gov. Contact points for  our offices of Congressional Relations and Public Affairs may be found on  the last page of this report. GAO staff who made major contributions to  this report are listed in appendix V.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: This appendix provides information on the scope of the work and the  methodology used to examine (1) how the Environmental Protection  Agency (EPA) addresses the cleanup of sites it has identified as eligible  for the National Priorities List (NPL), (2) how the processes for  implementing the Superfund Alternative (SA) and NPL approaches  compare, and (3) how SA agreement sites compare with similar NPL sites  in completing the cleanup process.
To examine how EPA addresses the cleanup of hazardous waste sites  with a level of contamination that makes them eligible for the NPL, we  analyzed applicable federal statutes and EPA regulations and guidance to  determine the available approaches to address sites that are reported to  the Superfund program. We then obtained and analyzed data from EPA’s  Comprehensive Environmental Response, Compensation, and Liability  Information System (CERCLIS), the Superfund program’s database, as of  December 2012. Specifically, we analyzed EPA’s CERCLIS database to  determine how many sites EPA currently classified as undergoing long- term cleanup under each approach, both nationally and by each of EPA’s   According to EPA officials, sites under each of the long-term  10 regions.cleanup approaches would have a Hazard Ranking System score of at  least 28.50, otherwise the site would have been classified as “no further  remedial action planned.” Thus, all sites identified as being under a long- term cleanup approach were considered to have contamination making  them eligible for the NPL. This analysis involved the review of EPA’s non- NPL status code, NPL status code, and SA code. In addition, we  conducted semistructured interviews with officials in all 10 EPA regions to  understand each region’s processes for selecting among long-term  cleanup approaches and why regions used the various approaches. We  also obtained relevant supporting documentation from these regional  officials. In addition, we interviewed EPA headquarters officials about the  assessment process and cleanup approaches. Finally, we interviewed a  nonprobability, convenience sample of officials from 13 state cleanup  programs who were familiar with available cleanup approaches. The  convenience sample consisted of representatives from state  environmental departments taking part in an Association of State and  Territorial Solid Waste Management Officials conference call who agreed  to speak with us. Because this was a nonprobability sample, the results of  our analysis cannot be generalized to all states; however, these officials  provided important information about the cleanup process.
To compare the processes for implementing the SA and NPL  approaches, including the cleanup process and EPA’s oversight, we  analyzed available documentation on the two approaches, including  guidance and prior reviews. These reviews included an EPA Inspector  General (IG) report on the SA approach, as well as several reports on the  approach by EPA. We reviewed key findings and recommendations from  the IG’s report, as well as the evidence provided by EPA to demonstrate  its implementation of the report’s recommendations. We found the  evidence to be sufficient to assess whether EPA had implemented these  recommendations. In addition, we interviewed officials in all 10 EPA  regions to determine how each region implemented the SA approach and  obtained relevant supporting documentation. Finally, we interviewed EPA  headquarters officials knowledgeable about the SA approach.
To compare how SA agreement sites and similar NPL sites complete the  cleanup process, we identified SA agreement sites and constructed a  comparison group of 74 NPL sites with agreements between EPA and  potentially responsible parties (PRP) similar to those at SA agreement  sites as follows:
We identified 67 SA agreement sites using the SA code and added to  that 3 SA agreement sites with their SA code removed after the site  was listed on the NPL for a total of 70 SA agreement sites; we  identified these three sites through our interviews with EPA officials.  We then obtained data on the legal actions taken at these sites from  EPA officials in the Office of Site Remediation Enforcement, which  included all agreements at these sites. Based on discussions with  EPA officials and the SA guidance, we isolated agreements at SA  agreement sites by selecting: (1) agreements entered into between  June 2002 (the date of the issuance of the first SA guidance) and  December 2012; (2) administrative orders on consent or consent  decrees; and (3) agreements involving a PRP-led combined remedial  investigation and feasibility study, remedial design, or remedial action.  After excluding four sites with SA codes that had SA agreements that  were not relevant to our study, we had 66 SA agreement sites for our  analysis.
We constructed our comparison group of 74 NPL sites starting with  the approximately 1,300 sites on the NPL. Specifically, we identified  the 702 sites with (1) a combined remedial investigation and feasibility  study, (2) remedial design, or (3) remedial action led by a PRP. We  requested data on the legal actions taken at these sites from EPA  officials and identified agreements similar to SA agreements based on  the date the agreement was entered into, the type of agreement, and  whether it included PRP-led long-term cleanup actions. In addition, we  dropped any NPL sites from Regions 1 and 2 from the analysis  because neither region has used the SA approach.
To more precisely align the NPL comparison group with SA agreement  sites, we analyzed, for SA agreements, the number of PRPs involved and  estimated costs for PRP-led actions. According to EPA officials, SA  agreement sites generally tend to have fewer PRPs. Based on this  analysis and EPA’s comments, we established thresholds for different  variables that agreements in our NPL comparison group could not  exceed. Specifically, NPL agreements could have: (1) no more than  seven PRPs involved and (2) administrative orders on consent with  estimated values between $100,000 and $5,000,000 or consent decrees  with estimated values between $125,000 and $30,000,000.ranges covered the vast majority of SA agreements.
After we identified the NPL sites with agreements similar to SA  agreement sites, we merged the data on the legal actions with cleanup  action data for NPL and SA agreement sites. We kept (1) combined  remedial investigation and feasibility studies, (2) remedial designs, and  (3) remedial actions at sites if the action was explicitly listed as a remedy  in an SA agreement or an SA-similar agreement (for NPL sites). We  identified negotiations related to cleanup actions of interest by comparing  the completion date of the negotiation with the completion date of the  agreement in EPA’s legal action data. For remedial investigation and  feasibility study negotiations, we kept any negotiation with a completion  date up to 180 days before the date of an administrative order on consent  for that site. For remedial design and remedial action negotiations, we  kept any negotiation with a completion date up to 2 years before the date   After keeping these cleanup actions of interest, we  of a consent decree.computed the durations of specific cleanup activities by calculating the  difference in months between the start and completion dates of identified  actions included in CERCLIS. We then calculated the mean and median  durations for the SA and NPL groups, as well as related ranges. We  compared the means and medians of the durations to assess whether  reported results are affected by a possible skewed distribution. We  decided to report the median because it is less sensitive to extreme  values and provides a better estimate of the “average” duration for this  analysis. Because only three SA agreement sites had reached the  construction completion milestone, we were unable to compare the  groups across the entire cleanup process; instead, we compared  completion of specific activities, such as remedial designs. The results of  our analysis cannot be generalized to all NPL sites because the 74 sites  were a subset of all NPL sites selected to be as similar as possible to SA  agreement sites based on key characteristics related to cleanup durations  such as having a PRP that agreed to conduct at least some part of the  cleanup. The comparison group was created for purposes of assessing  whether alternative approaches for addressing the long-term cleanup of  hazardous waste sites under the Superfund program can make a  difference in cleanup durations and not for making generalizations about  the larger universe of all NPL sites.
We conducted additional analyses on our SA and NPL groups to  determine if there were any unaccounted distributional differences within  each group that would materially affect our results. Specifically, we  examined the sensitivity of our results to differences in regional  distribution because the SA approach has different regional usage  patterns than the NPL approach. While 85 percent of SA agreement sites  are in Regions 4 and 5, only 34 percent of the similar NPL sites are in  Regions 4 and 5. In one analysis, we restricted SA agreement and similar  NPL sites to Regions 4 and 5, and the results were generally similar to  the analysis using the full set of SA agreement and similar NPL sites. In  addition, we examined the sensitivity of our results to differences in the  complexity of SA agreement sites and similar NPL sites measured  through the distribution of megasites and single operable unit sites in  each group. The results for length of negotiations were not sensitive to  differences between SA agreement sites and similar NPL sites in the  distribution of megasites, though the results for the length of cleanup  activities were somewhat sensitive to distributional differences. The  results for length of negotiation and cleanup durations were, in general,  not sensitive to differences in the distribution of sites with one or more  operable units.
To assess the reliability of the data from EPA’s CERCLIS database used  in this report, we analyzed related documentation, examined the data for  errors or inconsistencies, and interviewed agency officials about any  known data problems and to learn more about their procedures for  maintaining the data. Where there were discrepancies in the data, we  worked with EPA officials to clarify. For example, we identified certain SA  agreement sites that did not appear to have agreements with long-term  cleanup actions and reviewed these with EPA officials. Miscoded data  were corrected, and EPA officials provided explanations for unique  circumstances with certain agreements. We determined the data to be  sufficiently reliable for calculating durations for completing different  cleanup activities, including negotiations, at SA and NPL sites.
We conducted this performance audit from November 2011 to April 2013  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
section_title: Appendix II: Long-Term Cleanup Approaches by EPA Region
paragraphs: Tables 1 and 2 provide a breakdown of cleanup approaches by region.  Table 1 shows the number of sites within each region that are being  cleaned up under the various cleanup approaches. Table 2 shows each  region’s percentage of the total number of sites cleaned up under each  approach.
section_title: Appendix III: Data Analysis of SA Agreement Sites and Similar NPL Sites
paragraphs: In this appendix, we discuss the results of our analysis of the median  length of negotiations and the median length of cleanup activities at SA  agreement sites and similar NPL sites, which consisted of NPL sites with  agreements similar to SA agreements. Appendix I includes more  information on our methodology.
subsections: section_title: Median Length of Negotiations at SA Agreement Sites and Similar NPL Sites
paragraphs: As shown in table 3, for agreements with PRPs finalized from June 2002  through December 2012, SA agreement sites and similar NPL sites in our  analysis showed mixed results in the length of time to complete  negotiations, with SA agreement sites taking about as long as similar NPL  sites for remedial investigation and feasibility study negotiations and less  time for remedial design and remedial action negotiations.
Given the relatively limited number of negotiations for both NPL and SA  agreement sites in our analysis and the effect of unique sites, the  differences in the median length of negotiations cannot be attributed  entirely to the type of approach used at each site. Unique conditions at  each site have the potential to affect negotiations between EPA and the  PRP beyond the cleanup approach selected.
section_title: Median Length of Cleanup Activities at SA Agreement Sites and Similar NPL Sites
paragraphs: As shown in table 4, the SA agreement sites and similar NPL sites in our  analysis showed mixed results in the length of time it took to complete  specific cleanup activities, with SA agreement sites taking longer for  remedial investigations and feasibility studies on average and about the  same time for remedial designs and remedial actions on average.
Twelve of the 14 remedial investigations and feasibility studies at SA sites  took longer than 50 months to complete, which is greater than the median  for NPL sites in our analysis, as well as the median of 51 estimated by  EPA for PRP-led remedial investigation and feasibility studies that began  after June 2002. However, given the relatively small number of cleanup  activities for both NPL and SA agreement sites in our analysis and  differences at the site level, the differences in the median length of  cleanup activities cannot be attributed entirely to the type of approach  used at each site. For example, several remedial investigations and  feasibility studies at SA sites took a long time to complete due to  individual circumstances at the site, such as dealing with a proposal to  sell on-site materials to a manufacturing company, late participation from  PRPs in the process, or coordination with other cleanup efforts. SA  agreement sites and NPL sites in our analysis took slightly less than 2  years on average to complete remedial designs and slightly less than 3  years on average to complete remedial actions.
section_title: Appendix IV: Comments from the Environmental Protection Agency
section_title: Appendix V: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the individual named above, Vincent P. Price, Assistant  Director; Elizabeth Beardsley; Eric Charles; Pamela Davidson; Armetha  Liles; Cynthia Norris; and Nico Sloss made key contributions to this  report.