Environmental Policy & Guidance

Comprehensive Environmental Response, Compensation, and Liability Act

Purpose and Organization

Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, also known as "Superfund") in response to a growing national concern about the release of hazardous substances from abandoned waste sites. Under CERCLA Congress gave the federal government broad authority to regulate hazardous substances, to respond to hazardous substance emergencies, and to develop long-term solutions for the Nation's most serious hazardous waste problems. CERCLA also created a $1.6 billion Hazardous Substance Response Trust Fund. This fund, supported by an excise tax on feedstock chemicals and petroleum, was used to pay for cleanup activities at abandoned waste sites.

The 1980 law requires the parties responsible for the contamination to conduct or pay for the cleanup. If the Environmental Protection Agency's (EPA's) efforts to take an enforcement action for the cleanup are not successful, the federal government can clean up a site using the CERCLA Trust Fund. If the Superfund program conducts the cleanup, the government can take court action against responsible parties to recover up to three times the cleanup costs.

In 1986 CERCLA was reauthorized and amended by the Superfund Amendments and Reauthorization Act (SARA). SARA funded the program for a total of $8.5 billion for the period from 1987 to 1991. SARA expanded the federal government's response authorities and clarified that federal facilities are subject to the same CERCLA requirements as private industry. Under section 120 of CERCLA each department, agency, and instrumentality of the United States is subject to, and must comply with, CERCLA in the same manner as any nongovernmental entity. However, funds from the Superfund do not generally go towards paying for the cleanup of releases from federally owned facilities (Section 111[e][3]). Executive Order (E.O.) 12580, signed in January of 1987 and modified in August 1996 by E.O. 13016, further clarified that federal agencies and departments (e.g., U.S. Department of Energy [DOE], U.S. Department of Defense [DOD]) are responsible for sites within their jurisdiction. For further information on E.O. 12580, please click here.

Superfund Appropriations, Reform, and Reauthorization

CERCLA's authority to tax was extended through December 31, 1995, by the Omnibus Budget Reconciliation Act of 1990 (Public Law [Pub. L.] 101-508). After the end of 1995 the only revenues coming into the fund were amounts recovered from the potentially responsible parties (PRPs), interest on the fund's investments, fines, and penalties. The Government Accounting Office (GAO) estimated the fund's available balance at the end of fiscal year (FY) 1999 to be $1.4 billion. Yearly appropriations by Congress have kept the Superfund program funded. According to a Congressional Research Service Issue Brief, 50% of appropriations for FY 2000, FY 2001, and FY 2002 came from the trust fund and an equal amount came from general revenues. To determine the current status of pending legislation that may affect CERCLA, please go to Thomas, Legislative Information on the Internet.

Response Efforts and the National Contingency Plan

The CERCLA response effort is guided by the National Oil and Hazardous Substances Pollution Contingency Plan, commonly referred to as the National Contingency Plan (NCP) (40 Code of Federal Regulations [CFR] part 300). The NCP describes the steps that responsible parties (including federal facilities) must follow in reporting and responding to situations in which hazardous substances are released into the environment. The NCP establishes the criteria, methods, and procedures EPA uses to determine which releases have priority for long-term evaluation and response. The national goal described in the NCP is to select remedies that are protective of human health and the environment, that maintain protection over time, and that minimize untreated waste.

CERCLA, as amended by SARA, and the NCP provide authority for two types of response actions: removal actions and remedial actions.

Removal Actions

Removal actions are short-term actions taken to:

• clean up or remove released hazardous substances, pollutants, or contaminants;
• mitigate a threat of release of hazardous substances;
• monitor and evaluate release conditions;
• dispose of removed material; and/or
• mitigate or prevent damage to public health, welfare, or the environment.

The NCP categorizes removal actions in three ways: (1) emergency removal actions, (2) time-critical removal actions, and (3) non-time-critical removal actions. These categories are based on the type of situation, the urgency of the threat of release, and the subsequent time frame in which the action must be initiated. Emergency removal actions are necessary when there is a release that requires on-site activities to begin within hours or days. Time-critical removal actions are taken in response to releases requiring on-site action within six months. Non-time-critical removal actions are taken when a removal action is determined to be appropriate, but a planning period of at least six months is available before on-site activities must begin.

Section 40 CFR 300.415(e) lists removal actions that address specific situations. In general, removal actions can include, but are not limited to, one or more of the following activities:

• Fences, warning signs, or other security or site control precautions—where humans or animals have access to the release;
• Drainage controls, for example, run-off or run-on diversion—where needed to reduce migration of hazardous substances, pollutants, or contaminants off-site or to prevent precipitation or run-off from other sources (e.g., flooding) from entering the release area;
• Stabilization of berms, dikes, or impoundments or drainage or closing of lagoons—where needed to maintain the integrity of the structures;
• Caps on contaminated soils or sludges—where needed to reduce migration of hazardous substances, pollutants, or contaminants into soil, ground or surface water, or air;
• Use of chemicals and other materials to retard the spread of the release or to mitigate its effects—where the use of such chemicals will reduce the spread of the release;
• Excavation, consolidation, or removal of highly contaminated soils from drainage or other areas—where such actions will reduce the spread of, or direct contact with, the contamination;
• Removal of drums, barrels, tanks, or other bulk containers that contain or may contain hazardous substances or pollutants or contaminants—where it will reduce the likelihood of spillage; leakage; exposure to humans, animals, or the food chain; or fire or explosion;
• Containment, treatment, disposal, or incineration of hazardous materials—where needed to reduce the likelihood of human, animal, or food chain exposure; or
• Provision of an alternative water supply—where immediately necessary to reduce exposure to contaminated household water and continuing until such time as local authorities can provide a permanent remedy.

Remedial Actions

Remedial actions, the major part of the CERCLA response program, include the discovery, selection, study, design, and construction of longer-term actions aimed at a permanent remedy. The Superfund remedial process includes the following steps:

• Preliminary assessment (PA) — EPA performs a preliminary assessment of a site (often a review of data without an actual site visit) to determine if further study is necessary.
• Site inspection (SI) — A site inspection is an investigation conducted to find out whether there is a release or potential release and to determine the nature of the associated threats.
• Hazard Ranking System (HRS) — Under the HRS pertinent data about a site are evaluated and "scored." The score is based on information such as waste volume, waste toxicity, proximity to population, and distance to underground drinking water. Sites receiving an HRS score of 28.5 or higher are considered for listing on the National Priorities List (NPL). (See below.) As HRS studies are performed, release sites and waste sites may be removed or added to the list.
• National Priorities List — The NPL is compiled by EPA and lists those sites, including federally owned facilities, that appear to pose the most serious threats to public health or the environment. EPA determines whether or not to place a site on the NPL by using the HRS. As of a final rule published in the Federal Register on September 29, 2003 (68 FR 55875, effective October 29, 2003), the NPL includes 1,245 final sites, of which 158 are in the federal section. The NPL is updated periodically. For the most recent information on sites on the NPL, please click here.
• Remedial investigation (RI) — A remedial investigation, conducted by the lead agency, determines the nature and extent of the problem presented by the release.
• Feasibility study (FS) — The lead agency undertakes a feasibility study to develop and evaluate options for remedial action. The remedial investigation and feasibility study are collectively referred to as the "RI/FS."
• Record of decision (ROD) — After completing the RI/FS, EPA selects the appropriate cleanup option and publishes it in a public document known as the Record of Decision (ROD).
• Remedial design — The remedial design includes the technical analysis and procedures that follow the selection of a remedy for a site.
• Remedial action — The remedial action involves the actual construction or implementation of a cleanup. If a hazardous substance will remain at the site, a review of the remedial action is required five years after implementation of the remedy. This review evaluates the protectiveness of the remedial action and, for long-term remedial actions, the effectiveness of the technology and specific performance levels.

Site Completion and Deletion from the NPL

EPA has developed a construction completion list (CCL) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Sites qualify when:

• any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved;
• EPA has determined that the response action should be limited to measures that do not involve construction; or
• the site qualifies for deletion from the NPL.

Please note that inclusion of a site on the CCL has no legal significance. Please click here for a list of construction completions at NPL Sites by state.

When all cleanup levels documented in the ROD have been achieved and cleanup actions have been successfully implemented and documented in a close-out report, EPA considers the site for deletion from the NPL. EPA must prepare a notice of intent to delete the site from the NPL, publish a notice in the FR, compile a deletion docket of key materials, solicit comments from the public, and obtain the state's concurrence before finally deleting the site from the NPL. For additional details regarding site deletion from the NPL, please click here.

Natural Resource Damage Assessment

Under CERCLA, as implemented by the NCP, federal or state officials or Indian tribes that are appointed as trustees for natural resources can assess damages ". . . for injury to, destruction of, or loss of natural resources. . ." following a release of hazardous substances. Assessments are made on the basis of "residual" injury that was not or could not be addressed by the selected remedy. As a Natural Resource Trustee (NR Trustee) for land that it manages, DOE has a broad responsibility for natural resources under its jurisdiction. To assist DOE Program and Field Organizations in understanding and meeting their NR Trustee responsibilities, DOE's Office of Pollution Prevention and Resource Conservation Policy & Guidance (EH-43) (formerly the RCRA/CERCLA Division of the Office of Environmental Policy and Guidance) has prepared a guidance document on this topic, Integrating Natural Resource Damage Assessment and Environmental Restoration Activities at DOE Facilities. Other guidance on Natural Resources Damage Assessment may be found under the "Policy and Guidance" button on the DOE Environmental Policy and Guidance Web site.

Community Environmental Response Facilitation Act of 1992

The Community Environmental Response Facilitation Act of 1992 (CERFA) (Pub. L. 102-426, October 19, 1992) amended the CERCLA provisions dealing with federal activities on any real property owned by the government. It requires the federal government to identify those parts of that real property where no hazardous substance had been stored, released, or disposed of. This identification expedites the sale of excess property, allowing uncontaminated property to be sold before cleanup of the whole facility is completed. The prompt identification of property that will not require environmental remediation is intended to facilitate the transfer of such property for economic redevelopment purposes.

Section 4 of CERFA amends section 120(h)(3) of CERCLA to clarify the extent of remedial action necessary to protect human health and the environment on property where hazardous substances were stored, disposed of, or released. Remedial action necessary to protect human health and the environment is deemed to have been taken if the construction and installation of an approved remedial design have been completed and the remedy has been demonstrated to EPA to be operating properly and successfully. Long-term pumping and treating of ground water and continued operation and maintenance of remediation projects, therefore, do not preclude the sale or transfer of DOE property.

Hall Amendment

The Hall Amendment, section 3154 of the National Defense Authorization Act of 1994, amends section 646 of the DOE Organization Act. The Hall Amendment allows DOE to lease property for up to ten years if it is temporarily not needed or is excess at DOE facilities to be closed or reconfigured. A lease can include an option to renew for more than ten years if the Secretary of Energy determines that a renewal promotes national security or is in the public interest.

To qualify for leasing under the Hall Amendment, the property must be located on land acquired by DOE. Acquired property and related personal property are described as those properties which:

• are located at a DOE facility to be closed or reconfigured,
• are not needed by DOE at the time the lease is entered into, and
• are under the control of DOE.

As modified by the Hall Amendment, section 646(e)(1) of the DOE Organization Act now states:

Before entering into a lease under subsection (c), the Secretary shall consult with the Administrator of the Environmental Protection Agency (with respect to property located on a site on the National Priorities List) or the appropriate State official (with respect to property located on a site that is not listed on the National Priorities List) to determine whether the environmental conditions of the property are such that leasing the property, and the terms and conditions of the lease agreement, are consistent with safety and the protection of public health and the environment.

EPA's policy on transfers for properties on the NPL is presented in the June 13, 1997, memorandum discussed below.

DOE collaborated with EPA in drafting a Joint Policy for Leasing of Real Property at DOE Sites Using the Hall Amendment (42 U.S.C. 7256[c]). This document proposes, among other things, that a Phase I standard environmental assessment (also known as an environmental baseline survey) should be conducted. For more information on topics such as environmental baseline surveys, transfer of environmental permits, and other environmental requirements, DOE field elements are urged to refer to Cross-Cut Guidance on Environmental Requirements for DOE Real Property Transfers (DOE/EH-413/9712, October 1997).

Policy towards Landowners and Transferees of Federal Facilities

On June 13, 1997, EPA issued a memorandum entitled Transmittal of the Policy towards Landowners and Transferees of Federal Facilities (pertaining mainly to CERCLA section 120[h], "Property transferred by federal agencies"). The policy addresses potential liability concerns of landowners and transferees (e.g., lessees) who acquire federal property. The policy was developed in cooperation with a number of federal agencies, including DOD and DOE. In this policy EPA explicitly takes the position that it will not take enforcement action against landowners and transferees who acquire contaminated property from a federal agency unless they (1) contributed to or exacerbated the contamination existing at the time of the acquisition or (2) caused new contamination. It is necessary to make this policy statement because the Superfund statute generally assigns liability to parties who acquire property with knowledge of contamination, unless other provisions are made. Furthermore, because the Superfund statute imposes the responsibility on federal agencies to take all remedial action concerning the contamination (including that found necessary after the property transfer), EPA has determined that a prospective purchase agreement for property transferred from federal agencies to private landowners and transferees is not necessary. As the result of these specific dispensations, this policy promotes the expeditious transfer of property (such as brownfields [see discussion below]), facilitates reuse and redevelopment, and reduces transaction costs.

The policy applies only to the transfer of property at federally owned facilities. EPA's existing "Guidance on Agreements with Prospective Purchasers of Contaminated Property" (60 FR 34792, July 3, 1995), addresses property transfer between private parties where an EPA action has been taken, is anticipated, or is currently underway.

To overcome the difficulties posed by contamination at federal facilities, EPA's Federal Facilities Restoration and Reuse Office (FFRRO) works with DOE, DOD, and other federal entities to help them develop creative, cost-effective solutions to their environmental problems. Please click here to visit the FFRRO Web site.

Superfund Recycling Equity Act of 1999

On November 29, 1999, President Clinton signed the Superfund Recycling Equity Act (Pub. L. 106-113) into law, exempting generators and transporters of recyclable material from liability under CERCLA. The amendment was part of the omnibus spending bill of the 106th Congress. This legislation added a new section 127 to CERCLA that:

• promotes the reuse and recycling of scrap material, thereby encouraging waste minimization and natural resource conservation;
• creates greater equity in the statutory treatment of recycled versus virgin materials; and
• removes disincentives and impediments to recycling that were unintentionally created as a consequence of the 1980 Superfund liability provisions.

This amendment exempts from Superfund liability "any person who arranged for recycling of recyclable material." Two things must be demonstrated in order to qualify for the exemption: (1) the material must fit the definition of recyclable material and (2) the person seeking the exemption must have "arranged for recycling" of the material.

"Recyclable material" includes scrap paper; scrap plastic; scrap glass; scrap rubber (other than whole tires); scrap metal; and spent lead-acid, spent nickel-cadmium, and other spent batteries. Recyclable material does not include certain shipping containers, whole tires, and material contaminated with more than 50 ppm polychlorinated biphenyls (PCBs).

To demonstrate that arrangements have been made for recycling of scrap paper, plastic, glass, textiles, or rubber, the following criteria must be met:

• the material must meet a commercial specification grade;
• a market must exist for the material;
• a substantial portion of the recyclable material must be available for use as feedstock for the manufacture of a new saleable product;
• the recyclable material must be able to replace or substitute for a virgin raw material or the product to be made from the recyclable material must be able to replace or substitute for a product made, in whole or in part, from a virgin raw material; and
• the person arranging to recycle must exercise "reasonable care" to determine that the facility where the recyclable material will be handled or processed is in compliance with all applicable environmental laws and regulations. (EPA has not published any guidance on what constitutes "reasonable care" under sections 127[c][5] and [6] of CERCLA.)

Transactions involving scrap metal and spent batteries are subject to additional criteria (as specified in CERCLA section 127[d] and [e]).

In August 2002 EPA issued guidance entitled Superfund Recycling Equity Act of 1999: Factors to Consider in a CERCLA Enforcement Case.

Brownfields

In July 1996 EPA established an Interagency Working Group on Brownfields to begin drafting a national plan that would guide future work on this issue. EPA's Brownfields Program is designed to empower states, communities, and other stakeholders to work together in a timely manner to prevent, assess, safely clean up, and sustainably reuse brownfields. EPA estimates that between 500,000 and 1,000,000 brownfields exist in the United States today. Many of these sites are undeveloped because under previous Superfund regulations owners and operators of a contaminated property could be held liable for the cost of cleanup, regardless of whether they actually caused any of the contamination.

The Brownfields Revitalization Act (Title II of Pub. L. 107-118) was signed on January 11, 2002. It amends CERCLA and defines the term "brownfield site" to mean "real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant." This law expands EPA's existing Brownfields Program, boosts funding for assessment and cleanup, enhances roles for state and tribal response programs, and clarifies Superfund liability. The Act provides exceptions to CERCLA's owner/operator liability provisions, making it easier for a person to purchase or lease contaminated properties without being held potentially liable for the cleanup of the site.

On November 13, 2002, the EPA Administrator announced that the agency and 21 other federal agencies and departments (including DOE) would work together to redevelop brownfields under the new Brownfields Federal Partnership Action Agenda. The action agenda is one piece of a comprehensive effort to address brownfields cleanup and revitalization efforts. It represents the focused efforts of those federal agencies making over one hundred commitments to work together in a timely, cooperative manner to help communities more effectively prevent, assess, safely clean up, and sustainably reuse brownfields.

Please click here to see extensive information on brownfields issues available through EPA's Web site.

Regulations implementing CERCLA may be found in Title 40 of the CFR, Chapter I, Subchapter J.